Shaffer v. State Farm Amended Opening Brief

STATEMENT OF THE CASE

On August 27, 1996, Mr. Shaffer was injured by an unlicensed and uninsured minor (Exhibit 27, #26373448). Mr. Shaffer had uninsured motorist (“UM”) and personal injury protection (“PIP”) coverage (Exhibit 6A, #26373448) with State Farm Mutual Automobile Insurance Company (“State Farm”).
In April 2002, following a bench trial (“hereinafter “UM trial”), $502,000.00 was awarded to Mr. Shaffer against State Farm; with $35,000.00 for loss of consortium to Mrs. Shaffer (#790364; April 24, 2002, p.102), costs of $22,016.00, and pre- and post-judgment interest (Exhibit 272A, #28674134;Exhibit 511, #28674324). State Farm appealed, and the Supreme Court ruled in favor of Appellants on December 6, 2004. State Farm v. Brekke, 105 P.3d 177 (Colo.2004).
State Farm refused to pay UM benefits owed pursuant to the judgment, as well as PIP benefits, and a bad-faith trial commenced in June 2008. Judge Vigna and State Farm’s counsel engaged in various instances of misconduct during the trial, including engaging in ex parte communications (#28675853). The trial resulted in a hung jury and mistrial (hereinafter “2008 mistrial”). A new trial was scheduled for October 13, 2009 (hereinafter 2009 trial”).
Notwithstanding knowledge of the misconduct involving Judge Vigna and State Farm’s counsel that occurred during the 2008 mistrial, Judge Eyler adopted all of Judge Vigna’s rulings (September 30, 2009, p.61, l.13-4). Judge Eyler then demonstrated her bias by striking evidence and exhibits without a basis and ultimately dismissed the case on the eve of trial for failure to prosecute and issued sanctions against Appellants. However, the court later denied State Farm’s request for sanctions for the manner in which Appellants prosecuted the lawsuit. Appellants now appeal that dismissal.
The Statement of Facts is fully set forth in Appellants’ Motion for Post Judgment Relief, filed December 24, 2009 (#28675853).

ARGUMENT
A. APPELLANTS ARE OWED THE MONIES DETAILED HEREIN REGARDLESS OF THE DISMISSAL OF THE UNDERLYING BAD-FAITH ACTION
Appellants are entitled to immediate payment of these funds, as well as costs, fees, and statutory interest incurred in pursuing payment of these funds. “Wrongful withholding” interest (i.e., interest owed but not paid) is mandated under §5-12-102, authorizing interest on monies owed and not paid, Peterman v. State Farm Mut. Auto. Ins. Co., 8 P.3d 549 (Colo.App.2000).
1. Standard of Review
The standard of review is de novo for statutory interpretation or legal conclusion that provides a basis for a cost or fee award. Brown v. Davidson, 192 P.3d 415, 420 (Colo.App.2006).
2. Law and Analysis
a. Appellants are entitled to payment of reasonable costs incurred in the 2002 UM trial and are entitled to costs, statutory interest, and fees incurred pursuing payment of these costs.
State Farm’s policy states “[i]f there is no agreement on [fault and damages] then the insured shall file a lawsuit…” against the at-fault driver and State Farm and the “judgment must be the result of an actual trial…”)(Exhibit 6D,#26373455). Appellants complied.
At the UM trial, Appellants were awarded $22,016.00 in costs (Exhibit 272A,#28674134). State Farm did not pay, though the trial judge specifically found State Farm owed “$100,000 plus interest and costs.” (April 24, 2002, p.102, l.4-6). State Farm’s policy limits are “exclusive of costs and interest.” Allstate Ins. Co. v. Allen, 797 P.2d 46, 50 (Colo.1990).
State Farm required Appellants to obtain a judgment and incur $22,016.00 in costs to receive UM benefits. (Exhibit 6D,#26373455;April 24, 2002, p.102; Exhibit 272A, #28674134). Garceau states “insureds are awarded costs to provide them with full recovery for damages.” Garceau v. Iowa Kemper Ins. Co., 859 P.2d 243, 245 (Colo.App.1993).
Forcing insureds to “incur additional expenses, such as witness fees, attorney fees, and other costs of presenting a case, as well as an unquantifiable hardship of prolonging a final resolution of the case” is against public policy. Brekke at 186; Allen at 50. A policy cannot be enforced when it violates public policy by attempting to dilute, condition, or limit statutorily mandated insurance coverage. Farmers Ins. Exch. v. Star, 952 P.2d 809, 811 (Colo.App.1997).
State Farm’s aggressive defense increased Appellants’ costs, and State Farm is obligated to reimburse Appellants for costs of $22,016.00 plus interest which was $39,154.00 on October 13, 2009 and continues to accrue at $8.58 per day (April 24, 2002, p.102; Exhibit 272A,#28674134; Exhibit 511,#28674324). Colo.Rev.Stat. §5-12-102.
b. Appellants are entitled to reasonable fees incurred in the appeal of the 2002 UM trial and costs and fees incurred in pursuing payment, including fees incurred in the appeal
After the UM trial, State Farm appealed to ascertain the meaning of its policy language, which the Supreme Court determined violated public policy, and was unenforceable. Brekke at 183.
State Farm’s appeals caused Appellants to incur legal fees of $176,705.00. (Exhibit 303,#25845914). An insurer should reimburse its insured for attorney fees incurred defending themselves in suits initiated by their own insurer to determine the meaning of its policy language. Upland Mutual Insurance, Inc. v. Noel, 214 Kan. 145, 519 P.2d 737 (1974). “[I]f the insurer can force him into a declaratory judgment proceeding and, even though it loses in such action, compel him to bear the expense of such litigation, the insured is actually no better off financially than if he had never had the contract right mentioned above…” 7A J. Appleman, Insurance Law & Practice § 4691 (1962).

c. Appellants are entitled to a return of the $13,921.00 taken from their UM benefits on June 6, 2005 and costs and fees incurred in pursuing payment of these benefits.
On August 20, 2002, Appellants’ counsel was sanctioned $13,921.00 for legal fees allegedly incurred by State Farm in moving to strike Appellants’ C.R.C.P. 26(a) endorsement of Nadine Cain as a potential witness who may have knowledge that could lead to discovery of admissible evidence (#497100).
By several court orders, State Farm received a lien which it could collect only if 1) Appellants were successful in their subsequent bad-faith trial, and 2) judgment in the bad-faith trial entered against State Farm. State Farm could still only deduct the sanction from any attorney fees portion of the judgment (#876398). The judge specifically ruled “in no way under any circumstance is one penny that State Farm owes Mr. and Mrs. Shaffer going to pay for this.”(June 6, 2002, p.126, l.12-4). Although Mr. Levy prepared order and was aware of the conditions on receiving payment, he ignored them and deducted $13,921.00 from Appellants’ UM benefits. (Exhibits 188F,188G,#26373455).
Though Judge Vigna ruled (June 6, 2002, p.126, l.12-14; 876398;#10548030; April 22, 2008, p.15, l.1-3;#19623203) that State Farm had wrongfully withheld the $13,921.00 and stated in open court, “[t]here are no words in the English language that I can use to come up with that say that Mr. Levy had no right whatsoever to take this money from Appellants,”(April 22, 2008, p.15, l.1-3), this statement was omitted from the transcript, but the court issued a written order dated April 28, 2008, nunc pro tunc to April 24, 2008, that clearly set forth that State Farm had no right to take $13,921.00 from the Shaffers’ UM benefits(#19607649).
Though the judge issued a later order stating “the money was not wrongfully withheld by State Farm…”(#21430843) this was issued after the ex parte communications and other misconduct of Mr. Levy and the trial judge had occurred (#28675853).
Appellants are entitled to fees and costs incurred in pursuing a return of the $13,921.00 under the fiduciary exception to the American Rule, since insurance companies owe a “fiduciary duty with respect to…the payment of claims.” Varity Corp. v. Howe, 516 U.S. 489, 512, 116 S.Ct. 1065, 134 L.Ed.2d 130 (1996); Bernhard v. Farmers Ins. Exch., 915 P.2d 1285, 1288 (Colo.1996) (“[a]ttorney fees may be recoverable in an action for breach of fiduciary duty as a recognized exception to the American rule.”)
d. Appellants are entitled to statutory interest, plus reasonable costs and fees incurred in collecting payment of the interest
1) Appellants are entitled to pre-judgment interest up to policy limits.
On April 24, 2002, Appellants were awarded pre-judgment interest of, $45,282.19 which incurred from the date of the accident to the date of judgment. (Exhibit 511,#28674324;April 24, 2002, p.102).
As a result of Mr. Levy’s taking $13,921.00 on June 5, 2005, Appellants received only $86,079.00 of their UM benefits rather than the full $100,000.00. (Exhibit 6A,#26373448).
Since State Farm paid less than its UM policy limits, Appellants are entitled to pre-judgment interest up to policy limits, or $13,921.00. Colo.Rev.Stat. §13-21-101.
2) Appellants should be entitled to pre-judgment interest of $45,282.19 over policy limits.
The pre-judgment interest incurred from the date of the accident to the date of judgment was $45,282.19 (Exhibit 511,#28674324).
State Farm’s policy required Appellants to secure judgment before paying UM benefits, resulting in the “unquantifiable hardship of prolonging a final resolution of the case.”(Exhibit 6D,#26373455);Brekke at 186. The accident occurred on August 27, 1996 (Exhibit 27,#26373448), and final judgment was entered on April 24, 2002. (#790364; April 24, 2002, p.102).
Pre-judgment interest “is awarded to indemnify the plaintiff for the loss of earnings on that money due to its delayed payment.” Seaward Const. Co., Inc. v. Bradley, 817 P.2d 971, 975(Colo.1991).
In order for an award of pre-judgment interest to make the plaintiff whole, pre-judgment interest must be allowed over policy limits. Otherwise, the incentive remains with the insurance company to delay the payment of UM benefits, and unfairly earn interest on UM benefits that constructively belonged to their insureds on the date of the accident, contrary to the strong public policy for Colorado that insureds receive prompt payment of their UM benefits. Brekke at 188.
3) State Farm owes statutory post-judgment interest on their UM benefits of $100,000 from the date of the April 24, 2002 judgment until the date benefits are paid.
Appellants submitted calculations by an economist showing that, as of October 13, 2009, State Farm still owed post-judgment interest of $31,919.00, continuing to accrue at a rate of $7.00 per day on the $100,000 of UM benefits owed (Exhibit 511,#28674324). State Farm made only a partial payment of post-judgment interest and has refused to pay the balance owed (Exhibit 188H, 188J,#26373455).

B. THE TRIAL JUDGE ERRED IN REFUSING TO RECUSE HERSELF AND IN REFUSING TO DISQUALIFY MARC LEVY FOR FRAUD, MISREPRESENTATION, AND OTHER MISCONDUCT; AND IN ISSUING ORDERS AFTER THE COURT ENGAGED IN MISCONDUCT
Appellants exercised their right to challenge the neutrality of the judge by submitting a motion for recusal, accompanied by a sworn affidavit evidencing the judge’s bias and partiality, and by filing a motion to disqualify State Farm’s attorney.
1. Standard of Review
The disqualification of a judge is reviewed de novo. The Court starts with the precept, basic to the system of justice, that a judge must be free of all taint of bias and partiality. People v. Julien, 47 P.3d 1194 (Colo.2002).
When a trial judge should be excused because of an appearance of impropriety or bias, “she loses jurisdiction…requiring the exercise of judicial discretion.” People v. Arledge, 938 P.2d 160, 167 (Colo.1997).
2. Law and Analysis
a. The trial court erred in denying Appellants’ Motion for Recusal.
A judge must be disqualified if interested or prejudiced in an action. C.R.C.P. 97; C.J.C.3(c)(1), which requires “a judge disqualify…herself if the judge’s impartiality might reasonably be questioned.” Even if a judge is confident he or she is impartial, the judge’s duty is to “eliminate every semblance of reasonable doubt or suspicion that a trial by a fair and impartial tribunal may be denied.” Johnson v. Dist. Court, 674 P.2d 952, 956 (Colo.1984).
1) The motion was sufficient to warrant recusal; and all rulings issued after the motion for recusal was filed must be set aside.
When presented with a motion to disqualify, the judge must accept as true the facts stated in the motion and accompanying affidavits, and determine only their legal sufficiency. Prefer v. PharmNetRx, LLC, 18 P.3d 844 (Colo.App.2000). To be legally sufficient, the motion and affidavits must state facts from which it may reasonably be inferred that the judge has a bias or prejudice that will prevent the judge from dealing fairly with the moving party. Steiger v. Burroughs, 878 P.2d 131 (Colo.App.1994).
Though Appellants’ motion and supporting affidavit provided sufficient facts from which it may be inferred the judge was biased or prejudiced (#26373455), the motion was denied, and Appellants were sanctioned for filing it (#22595218). Judge Vigna did not deny any of the allegations, or address the appearance of impropriety created when all allegations were reviewed together (#22595218), but merely ruled the allegations were insufficient for recusal.
Immediately following this ruling, and before retiring from the bench, Judge Vigna issued several prejudicial orders binding Appellants to all directed verdicts and evidentiary rulings issued during the 2008 mistrial, limited Appellants’ ability to present evidence of bad faith at the 2009 trial, and ensured State Farm’s victory (#21430843).
Mr. Levy drafted and submitted these orders for the judge’s signature without consulting with Appellants, and were signed the following day (#21395176; #21430843). “Prior to filing…a proposed order, the attorney shall submit it to all other parties for approval…A party objecting to the form of the proposed order as filed with court shall have 5 days after service of the proposed order to file and serve objections…” C.R.C.P. 121§1-16.
One of these orders was a TMO that severely limited the scope of evidence Appellants could present, allotted Appellants just two days to present their case, and permitted State Farm to assert affirmative defenses not previously raised. (#21430843);C.R.C.P.8(c);C.R.C.P.16(f)(2)(C).
Though Appellants requested these orders be set aside, the court never ruled on this motion (#21560473).
b. The trial court erred in denying Appellants’ Motion to Disqualify Marc Levy.(#26831379)
The Supreme Court has held that opposing counsel may be called as a witness “upon a showing that…the evidence sought to be elicited from the lawyer will likely be admissible at trial under the controlling rules of evidence, and that there is a compelling need for such evidence, which need cannot be satisfied by some other source.” Taylor v. Grogan, 900 P.2d 60, 62 (Colo.1995). Mr. Levy was retained by State Farm, and thus State Farm is liable for his misconduct. Smoot v. State Farm Mut. Auto. Ins. Co., 299 F.2d 525, 532(5th Cir.1962).
Appellants endorsed Clifford Beem, Esq. as an expert to testify that Mr. Levy’s conduct constituted unreasonable insurance practices (#25753340; #26373455;27866058). Appellants had also properly endorsed Mr. Levy as a witness who may be called to testify at trial. C.R.C.P. 26(a);(#25753340). Appellants’ motion to disqualify set forth the basis for his mandatory disqualification.
Though State Farm has been sanctioned for similar conduct (Plateros v. State Farm, CV98-07605,Nevada; Marten v. State Farm, 334545,Arizona; Campbell v. State Farm Mut. Auto. Ins. Co., 65 P.3d 1134 (Utah 2001)), its philosophy is that “the occasional incidental loss it experiences by an adverse judgment against it does not outweigh the economic benefits of continuing with its philosophy and bad faith claims handling practices…”(#25938745).
Mr. Levy engaged in numerous instances of misconduct, including the following misconduct, which required Appellants to call him as a witness and which mandated his disqualification under the holdings in Taylor and Smoot. (#28675853;#25753340;#25921970):
1) Concealing witnesses and documents
“Lawyers have a special obligation to protect a tribunal against criminal or fraudulent conduct that undermines the integrity of the adjudicative process, such as…unlawfully destroying or concealing documents or other evidence or failing to disclose information to the tribunal when required by law to do so…” C.R.P.C. 3.3.
Prior to the 2008 mistrial, State Farm refused to provide contact information for several witnesses as requested by Appellants’ interrogatories (#19505020). As a result, Appellants were unable to locate key State Farm employees who were directly involved in Mr. Shaffer’s claim (#19799482).
Appellants had also requested numerous documents, including claims manuals post-dating 1992; ACE documents; TEACH documents; and Sloan’s Lake records. Mr. Levy asserted these documents did not exist (#19876563). Appellants later obtained a copy of a 1999 Claims Manual and these other documents from other sources, establishing that State Farm and Mr. Levy were providing false information and concealing key documents (#19910017;#19840481;#25921970; #27047564).
This intentional concealment of evidence was the result of State Farm’s “corporate policy and directive to deny and/or evade discovery in lawsuits against the company.”(#25938745). State Farm also “through its counsel denies the existence of many documents or denies the documents’ relevance.”(#25938745).
2) Providing false information to the court.
During the September 30, 2009 hearing, Mr. Levy stated that the primary reason for his objection to the court allowing testimony at trial from Mr. Strzelec, an endorsed expert witness, was that Appellants’ refused to provide documents listed in Mr. Strzelec’s expert disclosures filed June 15, 2009.
Mr. Levy stated he had “not been provided with a single one of these documents and that’s a big problem for me and he just said he provided those to us…” (September 30, 2009, p.29, l.22-24.).
Mr. Levy was specifically referencing various State Farm documents, though these documents were filed as Exhibits 418a, 418b, 418c, and 418d on June 15, 2009, June 19, 2009, and June 26, 2009. The First Party documents were similarly disclosed as Exhibits 416a, 416b, and 416c, and State Farm’s TEACH documents were filed as Exhibit 417.
At a later hearing, Mr. Levy stated “between Mr. Brandt and I, we have…” reviewed every exhibit (September 30, 2009, p.11, l.20). The above misrepresentations made by Mr. Levy that Appellants refused to provide documents listed in their expert disclosures were fraudulent and made to mislead the court to obtain a ruling striking Mr. Strzelec’s testimony (#27318767).
Mr. Levy also provided fraudulent information regarding Appellants’ attorney, including statements regarding Appellants’ exhibits because “there was at least one exhibit in the last trial that Mr. Muhr had actually altered and whited out relevant information…”(October 9, 2009, p.5, l.10-3). Mr. Levy failed to mention the single alteration made was the court-ordered redaction of a reference to health insurance information which both Mr. Levy and the trial court allowed to be introduced into evidence during the trial, as discussed in subsection (d) below at pg.20.
Further, Mr. Levy misrepresented to the court that Judge Vigna had previously struck Appellants’ bad-faith PIP claim (September 30, 2009, p.43, l.16-25; p.49, l.1-9). Judge Eyler relied on these misrepresentations to resolve an apparent conflict between language contained in Judge Vigna’s TMO (#21430843) and language contained in the directed verdicts order (#22659129). Both of these documents, and the transcript of the hearing, show Mr. Levy misled the court and Mr. Levy was aware of the previous ruling:
“…the several instances of conduct argued by the Plaintiff, taken individually and as a whole, did not rise to the level of wanton, fraudulent conduct necessary to submit a punitive damages claim to a jury…That may be bad faith, but it’s not fraudulent. It’s not malicious. It’s not willful and wanton.”

(September 30, 2009, p.43, l.16-25; p.49, l.1-9)(emphasis added).
Judge Eyler ignored this language and adopted Mr. Levy’s argument that it:
“was a misspeaking by Judge Vigna Your Honor. We do have the directed verdict motions…Judge Vigna ended up, dismissing all pip claims on the grounds that there was no evidence to support them…there was one remaining claim and that was in the alleged bad faith with respect to the uninsured motorist…”

(September 30, 2009, p.43, l.16-25).
A review of the transcript confirms Judge Vigna was distinguishing the willful and wanton/punitive damages claim from the claim that State Farm acted unreasonably or in bad faith regarding its handling of Mr. Shaffer’s PIP claims:
THE COURT (Judge Vigna): Excuse me. Excuse me. The jurors will decide whether State Farm acted in bad faith on that. The court believes there is sufficient evidence in the record that Dr. Crute did not ask for authorization of surgery until shortly before it was performed. And because of that, the Court does not find that this would be the basis for bad faith for punitive damages. I’m not saying bad faith. I’m saying punitive damages.
(July 1, 2008, p.275, l.5-12)(Emphasis Added).
The TMO stated Claim No. 6 was not “only all about uninsured motorist” but also included PIP bad faith, including the unreasonable delay in the payment of PIP benefits to Dr. Crute and other medical providers. Further, this order was clearly confined to the issue of punitive/exemplary damages and did not limit Appellants PIP bad-faith claim (September 30, 2009, p.43, l.16-25).
As a result of Mr. Levy’s misrepresentations to the court, Judge Eyler granted the request to strike any evidence that State Farm acted unreasonably in paying or delaying the payment of Mr. Shaffers medical bills, thereby substantially changing the nature of the case less than two weeks before trial (September 30, 2009, p.49, l.1-9;#27318767).
c. Misconduct of Judge Vigna and Marc Levy
1) Ex parte Communications
Mr. Levy and Judge Vigna had ex parte conversations during the 2008 mistrial, and Mr. Shaffer provided sworn affidavits regarding his observations (Exhibit 419,#26373455;Exhibit 505,#27866058).
On one occasion, Mr. Shaffer returned to the courtroom early and overheard Judge Vigna “reminiscing and talking with Mr. Levy about when she practiced law and cases that she handled… it looked like a good-old-boys social network between Judge Vigna and State Farm’s lawyer, Mr. Levy.”(Exhibit 419,#26373455).
Mr. Shaffer also stated “I was present when Judge Vigna…asked my lawyer to find Mr. Levy because Judge Vigna wanted to talk with Mr. Levy in her chambers…”(Exhibit 419,#26373455). Both Mr. Levy and Judge Vigna elected not to make a record of their conversations. Mr. Shaffer and his attorney later witnessed Mr. Levy and Judge Vigna, together, exiting the hallway leading to her chambers (Exhibit 419,#21430843,Exhibit 505,#27866058). Neither Mr. Levy nor Judge Vigna deny that these ex parte communications took place.
The record reflects that after these ex parte conversations, several adverse rulings were issued by Judge Vigna, including the reversal of previous orders without a basis in law, creating a reasonable inference that these ex parte conversations influenced the judge (#21430843;#28675853).
The statements of an attorney made in relation to the actions of a judge must be proven by the judge to be a “falsehood” and motivated by “actual malice” to constitute defamation worthy of sanctions. In re Green, 11 P.3d 1078, (Colo.2000). The burden of proving actual malice is on the public official. Id. To hold otherwise would discourage critics of official conduct from voicing their criticism because of the expense and doubt whether facts can be proven in court, although it is believed to be true and may in fact be true. Id.
Though Judge Vigna denied the motion, she did not deny the ex parte conversations, and ruled, contrary to established law, that the facts in the affidavit were not sufficient grounds for recusal, though she did not review the appearance of impropriety created when all allegations were reviewed together (#22595218);Id.
2) Other procedural inconsistencies
a) Evidence Tampering
Prior to the start of deliberations, Mr. Levy was permitted to take exhibits directly to the jury room unsupervised (Exhibit 419,#26373455).
Later, during deliberations when the jurors opened the door to take a break, Mr. Shaffer observed a large chart made by Mr. Levy that had not been admitted. Though Appellants’ informed the court on the record, Judge Vigna refused to take action, stating “if I declare a mistrial based on exhibits the costs will be assessed against the plaintiff.” (July 8, 2008, p.35, l.10-16)(emphasis added).
After the jury failed to reach a verdict, Mr. Levy re-entered the deliberations room and removed documents. Again, Judge Vigna did not accompany him or supervise him, and refused to inventory the documents that he removed (Exhibit 419,#26373455).
The judge allowed the misconduct and prohibited Appellants from inquiring further into the evidence tampering by State Farm’s attorney.
b) Court-ordered prejudicial disclosure of trial strategy
Judge Vigna required Appellants’ attorney to meet with former State Farm employee Clay Ranson immediately prior to his testimony, in the presence of Mr. Levy, and go over the questions Appellants’ counsel would be asking Mr. Ranson. The court then permitted Mr. Levy and Mr. Ranson to meet privately in the hallway to go over his testimony, giving Mr. Levy advance notice of Appellants’ trial strategy and the ability to prepare the testimony of his witness (Exhibit 419,#26373455). Prejudice occurs “if the opposing party is provided with information respecting the other party’s theories or trial strategy that otherwise would not be disclosed.” Munoz v. State Farm Mut. Auto. Ins. Co., 968 P.2d 126, 131 (Colo.App.1998).
c) Court Reporter unilaterally substituted by State Farm
Mr. Levy replaced the public court reporter for State Farm’s privately hired court reporter without informing Appellants, and obtained instant, real-time transcripts during the jury trial (June 11, 2008,p.193-4). “The practice has been for the parties to agree…” before using a privately hired court reporter. Miller v. United States, 317 U.S. 192, 197 (1942).
When Appellants discovered this and brought it to the attention of Judge Vigna, she claimed she was unaware Mr. Levy had unilaterally substituted State Farm’s court reporter for the trial (June 11, 2008, p.193, l.10-11). However, Judge Vigna bore “the responsibility to eliminate any reasonable doubt as to its fairness and impartiality.” Venard v. Department of Corrections, 72 P.3d 446 (Colo.App.2003). Failing to confirm a stipulation existed prior to trial created doubt regarding the fairness of the proceedings (Exhibit 419,#26373455). Judge Vigna also issued no sanctions against Mr. Levy or State Farm for this highly unethical behavior.
d) Allowing Mr. Levy to make inflammatory and prejudicial comments throughout the jury trial further evidencing Judge Vigna’s bias
Prior to the 2008 mistrial, Judge Vigna ordered that inflammatory comments are “not admissible in this case, and if it is addressed or mentioned in my courtroom by either attorney, I’m going to find you in direct contempt, and you will go to jail the day it happens.” (June 10, 2008, p.22, l.9-12). Mr. Levy repeatedly violated this order, yet the judge refused to take any remedial action.
For example, Judge Vigna had previously ordered that health insurance was not to be “offered as proof of a collateral source or as a means to offset damages.” (#20113719).
To comply with this Order, the undersigned redacted a single sentence within a letter from State Farm that referenced health insurance (Exhibit 119L). This exhibit was stipulated to by Mr. Levy, entered into the stipulated jury notebooks, and delivered to the court prior to trial.
On June 8, 2008, after the notebooks had been delivered to the court, State Farm made an offer of proof, and the trial judge thereafter allowed certain health insurance information (#20113719). However, the redacted exhibit was already in the jury notebooks and in the custody of the court, and inadvertently never replaced by either party. Further, Appellants moved this exhibit into evidence on the record after handing it to Mr. Levy who did not object; and then the court’s clerk published exhibit 119L to the jury (July 1, 2008, p.180, l.1-2;l.7-13).
Appellants referred to the document, containing the redacted sentence, during trial without objection by Mr. Levy or Judge Vigna, who stated she had “119L as an admitted exhibit…” (July 1, 2008, p.173, l.20).
Appellants again later referenced exhibit 119L, and Mr. Levy leapt to his feet and yelled, “this is another document that Mr. Muhr has altered…”(July 1, 2008, p.172, l.8-9).
The following then took place in the presence of the jury:
THE COURT: Remove that, Mr. Muhr, remove that from the jury.

MS. HACKETT: He took out part of this.

MR. LEVY: This is fraud happening in your courtroom, Your Honor.
July 1, 2008, p.172-3, l.22-5, l.1.
Judge Vigna excused the jury, and the undersigned explained that he had merely redacted a health insurance reference. Judge Vigna agreed “it may have been redacted at the time when the Court issued a…prior Court order regarding the jury shall not see anything regarding Qual Med, it may have been redacted.” (July 1, 2008, p.174, l.16-22).
Mr. Levy argued that the redaction was “to a critical point he is asking this witness why it is we are not paying. Yes, it does — he took out the part of that point to come in and have some excuse. This is representative–representative– representative, Your Honor…” (July 1, 2008, p.174-5, l.23-5, l.1-2).
The judge immediately changed her position, stating, “I think as an officer of the Court, when you mark a document…you are representing to the Court, Mr. Levy, and these jurors that this document has not been altered. You’re the one that redacted it. I didn’t redact it. Mr. Levy didn’t redact it and it’s a real problem.” (July 1, 2008, p.175-6, l.24-5;l.1-4).
The undersigned stated “[w]e were doing our best, Your Honor, to comply with the Court order until they showed this offer of proof.” (July 1, 2008, p.179, l.19-21). Judge Vigna responded, “Mr. Muhr, don’t go there with me. You have done nothing in this case pursuant to Court order. So save it for somebody besides me…[t]he point is this was redacted. You didn’t show Mr. Levy that this was redacted and it’s introduced to the jurors and so I’m not going to reference a Court order regarding the redaction. I’m going to basically say that that was taken out by you and that’s the remedy, short of dismissing the claims against your clients. Take it or leave it.” (July 1, 2008, p.180, l.1-2;l.7-13).
The redacted statement was completely irrelevant to the issue at hand, as it merely stated, “We would also like to obtain all prior records from Qual-Med as well.” (Exhibit 127, un-redacted version of Exhibit 119L). Furthermore, Judge Vigna ignored Appellants’ efforts to comply with court order and issued an inflammatory explanation to the jurors and refused to allow any other explanation for the redaction, severely prejudicing the jurors against Appellants and their attorney.
Contrary to her previous Order quoted above, Judge Vigna also allowed Mr. Levy to make additional highly inflammatory comments, showing his hostility towards Appellants and their attorney in front of the jury including:
a. “This is a when did you stop beating your wife question.” (June 12, 2008, p.103, l.4-5).

b. “Your Honor, again, I object. That’s not what happened. Mr. Muhr is making statements of things that are not true.” (June 17, 2008, p.152, l.8-10).

c.“Mr. Muhr intentionally kept people in the dark, concealed information, and walked into court saying ha, ha, I’m going to surprise State Farm with all this new stuff because we’re going to make them waste thousands of dollars doing discovery that I’m going to make useless by making fraud with respect to disclosure, by not prepping this witness in an appropriate time, and coming into trial and saying otherwise.” (June 19, 2008, p.148, l.17-24).

d. “This is fraud occurring in your court.” (June 26, 2008, p.270, l.13-4).

e. “…the statement from Mr. Muhr is a Rule 11 violation that he is trying to mislead and commit insurance fraud.” (June 26, 2008, p.149, l.6-8).

C. SANCTIONS AGAINST APPELLANTS OF $2,800.00 AND LATER AN ADDITIONAL $72,191.17 MUST BE REVERSED.
The facts of the case do not warrant monetary sanctions against Appellants. Appellants addressed State Farm’s request for Sanctions in Plaintiffs’ Response to State Farm’s Hearing Brief and Motion for Post-Judgment Relief. (#27666919;#28675853).
1. Standard of Review
A trial court’s decision to impose a sanction shall be overturned when such decision was an abuse of discretion, or manifestly arbitrary, unreasonable, or unfair. Nagy v. District Court of Denver, 762 P.2d 158 (Colo.1988).
When a trial judge should be excused because of an appearance of impropriety or bias, “she loses jurisdiction…requiring the exercise of judicial discretion.” Arledge at 167.

2. Law and Analysis
a. Sanctions of $2,800.00 for filing Motion for Recusal of Judge Vigna
Judge Vigna erred in sanctioning Appellants $2,800.00 for moving to disqualify her (#28827113). Imposing sanctions on an attorney for filing a motion for recusal is inappropriate, as “[a]ttorneys should be free to challenge, in appropriate legal proceedings, a court’s perceived partiality without the court misconstruing such a challenge as an assault on the integrity of the court.” Green at 1087, citing United States v. Brown, 72 F.3d 25, 29 (5th Cir.1995). See also In re Norman Zalkind, 872 F.2d 1, 15 (U.S. App. 1989);(#19187186;#19607649).
b. Sanctions of $72,191.17 could not be issued by Judge Eyler after appeal has been perfected.
The $2,800.00 sanction was affirmed in the dismissal order (#28827051). “[O]nce an appeal is perfected, jurisdiction over the case is transferred from the trial court to the appellate court for all essential purposes with regard to the substantive issues that are the subject of the appeal.” Molitor v. Anderson, 795 P.2d 266, 268 (Colo.1990); See also, Colorado State Bd. of Medical Examiners v. Lopez-Samayoa, 887 P.2d 8, 15-6 (Colo.1994).
“Unless otherwise specifically authorized by statute or rule, once an appeal has been perfected; the trial court has no jurisdiction to issue further orders in the case relative to the order or judgment appealed from.” People v. Dillon, 655 P.2d 841, 844 (Colo.1982). “[A] trial court’s jurisdiction is not restored until the mandate from the appellate court…unless the appellate court has issued a remand order.” Anstine v. Churchman, 74 P.3d 451, 452 (Colo.App.2003).
Appellants perfected their appeal on January 13, 2010. Appellants specified in their appeal (#28215849) that the sanction was improper. Thus, the trial court was without jurisdiction to thereafter substantially modify the sanction from $2,800.00 to $72,191.17 on March 23, 2010. (#30193346; #31593453);Dillon at 844.
c. State Farm acted with Unclean Hands and is therefore not entitled to sanctions.
State Farm is not entitled to sanctions due to its demonstrated misconduct and numerous procedural and ethical violations including during the 2008 mistrial and continuing thereafter. (Exhibit 419,#26373455;Exhibit 420,#28675853; 28675853). A party requesting equitable relief from the courts must do so with “clean hands.” Salzman v. Bachrach, 996 P.2d 1263, 1269 (Colo.2000). Thus, a party engaging in improper or fraudulent conduct relating to the subject matter of the cause of action may be ineligible for equitable relief. Id. The intent is “to protect the integrity of the court” and means “equity refuses to lend its aid to a party who has been guilty of unconscionable conduct…” Jameson v. Foster, 646 P.2d 955, 958 (Colo.App.1982); Salzman at 1269. (#26831370;#28675853).

d. The sanction of $72,191.17 was also without a factual basis.
The Court, in its sanction order (#28827113), referenced the following reasons for sanctioning Appellants $72,191.17.
1) Sanctions regarding State Farm’s Motion to Compel Clinton Shaffer’s Discovery Responses and Related Briefing were improper (#26953763).

The court sanctioned the undersigned for failing to comply with State Farm’s discovery requests, even though State Farm served these documents when it knew the undersigned was on a family vacation. (October 22, 2009, p.23, l.10-25). State Farm’s sanction request was based on Appellants’ failure to confer and to respond to State Farm’s interrogatories and requests for production (#27203472).
The “date for completion of all discovery shall be 50 days before the trial date.” C.R.C.P. 16. For the October 13, 2009 trial, the fifty-day deadline was August 24, 2009. Under C.R.C.P. 33(b)(3), Appellants had 30 days from the date of service to respond to State Farm’s interrogatories.
Although State Farm served its discovery on the receptionist on July 24, 2009, within the time prescribed by Rule 16, Mr. Levy knew Appellants’ counsel was traveling and service would not “reach the intended party” on July 24, 2009. (October 22, 2009, p.23, l.10-25). For this reason, the mailbox rule clearly permitted Appellants an additional three days in which to respond, placing Plaintiffs’ response date past the discovery cut-off. (#26306827);C.R.C.P. 5.
Further, conferring with State Farm’s counsel has been historically useless. “The duty to confer is not required in all cases …” and is not required if conferral would be useless. C.R.C.P. 121,§1-15.
Furthermore, Appellants were not permitted to communicate with Mr. Levy because he was properly endorsed as a witness regarding his misconduct alleged herein (#25753340). “In the case of represented organizations, this rule prohibits communications with a constituent of the organization who…has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil… liability.” C.R.P.C. 4.2.,Comment.
State Farm attempted to justify the sanctions request by stating “Mr. Muhr’s unavailability is not our responsibility” and “Muhr has seven offices in Colorado and presumably has all those offices sufficiently staffed to account for when he’s out of the office.” (October 22, 2009, p.20, l.7-11). This justification fails because State Farm was given advance notice that the undersigned would on a family vacation from August 10 through August 17, 2009:
MR. LEVY:…(T)here was an advisory filing in this court…where he indicated that he would be out of town until August 17th…we had written two letters, we had made phone calls about trying to schedule these depositions…we went ahead and noticed them because we could get no response to our communications…I called Mr. Muhr’s office on – the 17th was a Monday…I will represent that I specifically chose that time because Mr. Muhr had said he was going to be out of town until August 17th…”

October 22, 2009, p.23, l.10-25.(Emphasis Added).

Additionally, State Farm’s discovery requests were improper in that they sought information previously provided. Since the judge had ruled “[t]here is no reason why anything needs to be really sort of set up any differently than it was a year ago; we’re just going to do it again…,” there was no need for State Farm to request documents they had already received. #27441656; September 30, 2009, p.61, l.1; C.R.C.P 26(b)(3).
2) Sanctions regarding State Farm’s scheduling of depositions and Appellants’ Motion for Protective Order were improper (#27095455).

i. Deposition scheduling violations of C.R.C.P. Rules 16 and 26
Mr. Levy unilaterally scheduled numerous depositions without providing Appellants time to prepare, and noticed the depositions without following C.R.C.P. 30(b) (#26663669).
Mr. Levy knew Appellants’ counsel would object. (September 30, 2009, p.41, l.21-2: “MR. LEVY:…I mean I had some suspicion that he was going to object to these depositions”).
Mr. Levy was also aware that Appellants’ attorney was out of state immediately prior to the depositions:
“MR. LEVY: The depositions were scheduled for Wednesday the 19th…I specifically chose that time because Mr. Muhr had said he was going to be out of town until August 17th …”

(October 22, 2009, p.23, l.10-25).

State Farm’s request for sanctions for the following unilaterally scheduled depositions should have been denied:
a) Clinton Shaffer: State Farm previously deposed Mr. Shaffer and was required to obtain leave of court to depose him again. (#18872482).
b) William Muhr: State Farm failed to show a compelling need for seeking disqualification of Appellants’ attorney as a necessary witness (#20137539).
c) Clifford Beem: State Farm failed to confer on this deposition. (#26631217).
d) Mark Anderson: State Farm previously deposed Mr. Anderson and was required to obtain leave of court to depose him again. (#19303988).

ii. Deposition Violation of C.R.C.P. Rule 30(b)

“Consistent with C.R.C.P. 121, §1-12, a party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. The notice shall state the time and place for taking the deposition and the name and address of each person to be examined…” C.R.C.P. 30(b)(1).
State Farm scheduled the above-referenced depositions knowing Appellants’ counsel was on a family vacation. Mr. Levy only attempted to confer when he knew it would be fruitless. He first phoned the receptionist on August 17, 2009, the day Mr. Levy expected Appellants’ attorney to return from vacation, and asked her to “advise [Mr. Muhr] we have these depositions scheduled ‘cause I know he might object…” (September 30, 2009, p.41, l.21-3). Then, the day after Mr. Muhr was expected to return to Colorado, and the day before the depositions were scheduled, Mr. Levy “wrote Mr. Muhr another letter saying if you’re not going to show up, please let me know…” instead of calling (September 30, 2009, p.41, l.23-4).
The undersigned returned to the office on August 19, 2009, and immediately filed a motion for protective order upon learning of the depositions scheduled for that morning. Levy’s conferral letter, dated August 17, 2009, was not received until after Appellants’ submitted their motion for protective order (#26663669), and after the depositions were scheduled to begin. Thus, Mr. Levy carefully scheduled his conferral attempts to have the least likelihood of reaching Appellants’ attorney.
Further, C.R.C.P.37(a)(4)(B) permits an award of attorney fees only when a motion for protective order is denied, and Appellants protective order was not denied, but determined to be “essentially moot…” (#27441656).
Thus, the court also erroneously sanctioned the undersigned for “unfounded filing of a Motion for Protective Order,” (#26663669) because the motion was never considered by the court and never denied on the merits, but instead ruled “[g]iven the Court’s orders striking the supplemental disclosures, Defendant is no longer seeking to depose these individuals, which makes the Plaintiffs’ Motion for Protective Order essentially moot.” (#27441656).
Further, State Farm’s blatant violations of the mandatory procedural rules in scheduling the depositions made the motion for protective order substantially justified and, therefore, sanctioning Appellants was improper. See C.R.C.P. Rule 37(a)(4)(B).
3) Sanctions for State Farm’s Motion for Protective Order Re: Appellants’ Untimely Discovery Requests were improper (#27186520)

A Denver law school intern provided a sworn affidavit that she had timely mailed the discovery requests to Mr. Levy on July 15, 2009.(Exhibit 505,#27866058). The absence of a certificate of mailing did not mean the discovery was not sent or received, particularly in light of the sworn affidavit, though Mr. Levy claimed he did not receive them.
The court sided with Mr. Levy, despite a pattern of misconduct by Mr. Levy, as set forth in Mr. Shaffers’ sworn affidavits. (Exhibit 419,#26373455; Exhibit 505,#27866058). However, any dispute over this issue should not have resulted in sanctions to Appellants any more than it should result in sanctions to Mr. Levy.
Plaintiffs’ requests were re-submitted on August 18, 2009, before the discovery cut-off of August 24, 2009, because Appellants agreed with State Farm’s position that the discovery deadlines should be enlarged. In fact, State Farm requested the deadline be changed to a date after the start of trial (#26748427).
Unless the discovery deadlines were enlarged as requested by State Farm, it simply was not required to provide any answers beyond August 24, 2009, per the January 8, 2009 PTO, and State Farm’s protective order was unnecessary.
4) Sanctions regarding Appellants’ Motion to Disqualify Marc Levy were improper (#27211959).
Appellants submitted a motion to disqualify Mr. Levy on August 28, 2009 (#26831370) detailing numerous procedural violations and misconduct committed by Mr. Levy that were factually accurate and legally sufficient, as detailed in Section B(b), p.11. The court denied Appellants’ motion, despite the fact that State Farm filed its Motion for Enlargement of Time late, and filed its Response late with no sanctions (#27253207; #26831370);C.R.C.P. 6(b). The court did not issue or reserve any sanctions in this order, and the order itself only stated that it “contains no basis in fact upon which the motion should be granted.”
Further, Mr. Levy previously filed a motion to disqualify Appellants’ counsel, the motion was denied, but no sanctions were imposed upon Mr. Levy, demonstrating the inequality of treatment between the parties and the court’s bias (#20137539).
5) C.R.S. §13-17-102 Sanctions were improper.
Sanctions are not warranted under §13-17-102(4) because none of the listed causes applies to the underlying action. See C.R.S. §13-17-102(4)(“The court shall assess attorney fees if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment…”).
6) C.R.C.P. 11 Sanctions were improper.
Sanctions were also not warranted under C.R.C.P. 11(signature of an attorney on a motion is a certification that “to the best of his knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument…”)
Appellants’ motion to disqualify Mr. Levy was based on facts that were corroborated by evidence and by the observations of Appellants, fully supported by sworn affidavit (Exhibit 419,#26373455;Exhibit 505,#27866058). Therefore, Appellants’ motion to disqualify was not in violation of C.R.C.P. 11 and sanctions should not have been awarded.
7) C.R.C.P. 12(f) Sanctions were improper.
Appellants’ allegations of ex parte communications were incorrectly found to violate C.R.C.P. Rule 12(f). However, C.R.C.P. Rule 12 motions are governed under C.R.C.P. Rule 11. Therefore, the court’s finding that Appellants’ motion for disqualification was improper under C.R.C.P. Rule 12(f) does not negate the applicability of Appellants’ C.R.C.P. Rule 11 exemption. Thus, sanctions were not appropriate because there was some factual basis for Appellants’ assertions. For example, the February 10, 2006 Order allowed testimony regarding the withholding of $13,921.00 from the Shaffers’ UM check to defray Mr. Levy’s legal fees, as evidence of State Farm’s unreasonable conduct, contrary to several court orders (June 6, 2002, p.126, l.12-14; 876398;#10548030; April 22, 2008, p.15, l.1-3;19623203). Judge Eyler then issued an Order on September 28, 2009 adopting Judge Vigna’s previous orders, including this February 10, 2006 order (#105480030). Thus, Mr. Levy was properly endorsed to testify regarding the withholding of these UM funds.
8 ) Sanctions for Previous Orders of Trial Court and Colorado Supreme Court were improper.

The judge sanctioned Appellants because “the same motion had been previously denied by this Court and the Colorado Supreme Court.” (#28827113). The court erroneously ruled the Supreme Court had denied Appellants’ Motion for Disqualification of Mr. Levy, but the motion was not decided on the merits. The Supreme Court merely chose not to hear Appellants’ motion under C.A.R. 21.
9) Sanctions for requesting leave of court to endorse Nadine Cain were improper (#27324531).

State Farm is not entitled to sanctions under C.R.C.P. Rule 11 or C.R.S. §13-17-102 based on the denial of Shaffers’ motion for leave to endorse Nadine Cain (#27047564). Judge Vigna had permitted testimony of unreasonable PIP handling claims and evidence of bad-faith PIP handling for the 2009 trial, and Nadine Cain is competent to give both lay and expert testimony on this issue because she had in 2009 admitted knowledge of State Farm’s ACE and TEACH programs and claims handling policies.
Appellants’ request for leave of court to endorse Nadine Cain was based on new and recently discovered information that was not in Appellants’ possession at the time of their previous endorsement and which was outside of the Court’s previous prohibition concerning Nadine Cain (#876398).
Judge Eyler ordered sanctions on the grounds that endorsing Nadine Cain violated a previous order (#27047564). However, since Appellants did not endorse Ms. Cain, but instead properly requested leave of court to be permitted to endorse her, sanctions were inappropriate (#27047564).
“C.R.C.P. 37(c) dictates that a party be sanctioned for failure to comply with certain discovery deadlines by the preclusion of 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).
Appellants were required by C.R.C.P. 26(a)(1)(A) to disclose Nadine Cain prior to the UM trial, yet were sanctioned $13,921.00 for doing so (#876398), and were sanctioned a second time for requesting leave of court to endorse her for the 2009 trial based on newly discovered evidence (#27047564).
e. Sanctions of $13,91.00 issued by the court on August 20, 2002, were improper.
The court erred in sanctioning Appellants’ counsel for endorsing Nadine Cain as a potential witness under C.R.C.P. 26(a) as a person who may have knowledge or information in the case (#876398). As set forth in Appellants’ disclosures filed in 2002 (#480282), and their motion for reconsideration of the order striking Nadine Cain (#956883), the court erred in sanctioning Appellants $13,921.00. See also Argument E below of this brief addressing the appropriateness of endorsing Nadine Cain in 2002.
D. THE TRIAL COURT ISSUED RULINGS, ON AN ERRONEOUS VIEW OF LAW, AND DID SO WITH AN APPEARANCE OF BIAS AND, AS SUCH, FOR EITHER REASON, THE RULINGS MUST BE OVERTURNED
1. Standard of Review
Evidentiary rulings are reviewed for an abuse of discretion…[that] occurs when a trial court bases its ruling on a view of the law that is erroneous. Cooter & Gell v. Hartmarx Corp. 496 U.S. 384, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990).
When a trial judge should be excused because of an appearance of impropriety or bias, “she loses jurisdiction…requiring the exercise of judicial discretion.” Arledge at 167.
2. Law and Analysis
“Insureds…should be able to proceed to the jury on all damages that flow from a breach of the duty of good faith and fair dealing.” Goodson v. American Standard Ins. Co. of Wisconsin, 89 P.3d 409, 417 (Colo. 2004).
The following orders were issued in error by the trial court without a basis in fact or law; and such evidence of State Farm’s unreasonable conduct was relevant under C.R.E. 401, 402, 615, 702, and/or 705.
The trial judges erred in:
a. Prohibiting Appellants from submitting evidence that State Farm refused to pay reasonable costs incurred in the UM trial (April 24, 2002, p.102, l.4-6; #26373448; #28674134; #28674324), though this evidence was relevant under C.R.E. 401 and 402 (#19848227). See also, Dale v. Guar. Nat’l Ins. Co., 948 P.2d 545, 553 (Colo.App.1997); see also Thompson v. Shelter Mut. Ins., 875 F.2d 1460, 1462 (10th Cir.1989).
b. Prohibiting Appellants from introducing evidence that State Farm had, after initiating an appeal of the UM trial, unreasonably refused to pay legal fees incurred in State Farm’s appeal issued to determine the meaning of its own policy (#19848227). Brekke at 186; Flannery v. Allstate Ins. Co., 49 F. Supp. 2d 1223 (D.Colo.1999); See also Upland at 737.
c. Refusing to allow Appellants to submit evidence to the jury that State Farm had not paid pre-judgment interest up to policy limits in accordance with Colo.Rev.Stat. §13-21-101 (#19848227).
d. Refusing to allow Appellants to submit evidence that State Farm had unreasonably failed to pay all post-judgment interest awarded. (#27281436;#28674324;Colo.Rev.Stat. §5-12-106(1)(a); Peterman at 551.
e. Refusing to allow Appellants to submit evidence that State Farm had withheld $13,921.00 from their UM benefits contrary to clear court orders (June 6, 2002, p.126, l.12-14; 876398;#10548030; April 22, 2008, p.15, l.1-3;19623203).
f. Refusing to allow Appellants to testify that State Farm unreasonably refused to pay their PIP benefits of wage and essential services losses incurred within the first year after the accident (#790354).
g. Refusing to allow Appellants to testify that they were not offered extended PIP benefits in accordance with Colo.Rev.Stat. §10-4-710(2)(a);#19848227;#26373448; #28674134; #28674324; April 24, 2002, p.102. See also Campbell v. State Farm Mut. Auto. Ins. Co., 65 P.3d 1134 (Utah 2001); Thompson v. Budget Rent-A-Car Systems, Inc., 940 P.2d 987 (Colo.App.1996).
h. Striking evidence that Mr. Shaffer suffered physical impairments as a result of State Farm’s unreasonable conduct in delaying payment of his medical expenses and in approving medical treatment, though State Farm’s records showed surgery was requested repeatedly (#28674572;#25753340;#26373455; June 26, 2008, p.23, l.10-4).
i. Striking evidence of Mrs. Shaffer’s loss of consortium, though State Farm was notified of this claim prior to litigation, and this claim was properly pled. (Jury Instruction 28;#28674134; Exhibit 498,#26373448;#26373455;#28675853). Offering Mrs. Shaffer substantially less than she was awarded was a violation of Colorado’s Unfair Claims Settlement Practices Act at Colo.Rev.Stat. §10-3-1101, et seq. and constitutes an unreasonable insurance practice.
j. Not allowing Appellants to submit to the jury any claim for willful and wanton conduct. (#26372455;#27298693); Dale at 545. Munoz at 129.
k. Striking testimony regarding Dr. McCaffrey’s treatments of Mr. Shaffer because State Farm falsely informed the court that they “were not given medical authorizations to get the records.” (June 18, 2008, p.123, l.20-1; #18558744; C.R.E. 705. (See Unlimited Medical Authorizations at #25753340; #28674661).
l. Not allowing the jury to consider evidence that Dr. Crute had requested State Farm to approve Mr. Shaffer’s surgery (#25753382;July 1, 2008, p.274-6). C.R.E. 401, 402.
m. Preventing Dr. Timms from testifying consistent with his previous testimony. (June 20, 2008, p.99-102;#18558744). C.R.E. 401, 402, 702.
n. Striking Nadine Cain, the Pueblo PIP and UM supervisor who was properly endorsed pursuant to C.R.C.P.26(a)(1)(A), before the 2008 mistrial. Judge Eyler erred in not granting leave of court to endorse Nadine Cain for the 2009 trial, thereby precluding “discovery concerning information which…is reasonably calculated to lead to the discovery of admissible evidence.” (#27047564). Seymour v. District Court, 196 Colo. 102, 581 P.2d 302 (1978).
o. In striking evidence that State Farm withheld $13,921.00 of UM benefits in violation of court orders (#25753340;#10548030). C.R.E. 401, 402.
p. Striking Appellants’ foundation witness, Mr. Robert Houdek, though the late endorsement was the result of State Farm’s withholding evidence. (#19918937;#19975436;#18719915;#27373446); See C.R.C.P. 37(c), Todd at 973.
q. Permitting improper jury instructions. Clough v. Williams Prod. RMT Co., 179 P.3d 32, 40 (Colo.App.2007).
1) Jury Instructions 18 and 26
Instruction 18 states “[i]f you find that any one or more of these affirmative defenses…have been proved by a preponderance of the evidence, then your verdict must be for the defendant” and referred the jurors “elsewhere in these instructions” to locate the referenced affirmative defenses. Instruction 26 lists the affirmative defense of“[t]he plaintiffs failed to respond appropriately to requests for information, failed to reasonably perform their obligations under the insurance contract, or failed to get reasonable medical treatment.” When these two instructions are read together, if the jury finds any evidence Appellants did not “respond appropriately to requests for information,” then the verdict must be for State Farm. C.R.C.P. 8(c) (State Farm’s claimed affirmative defense is not a recognized affirmative defense and was not previously raised).
2) Instruction 32
Instruction 32 improperly instructed the jurors that Mr. Shaffer had “sued for the same injuries, damages, or losses on two different claims [bad faith PIP handling and bad faith UM handling] for relief” though each claim resulted in separate damages. This instruction further stated the jurors could only award damages once, even if both claims were proven (Exhibit 498,#27855079). Williams v. Chrysler Ins. Co., 928 P.2d 1375, 1377 (Colo.App.1996).
r. Binding Appellants to evidentiary rulings from the 2008 mistrial (#21938256;#22414414), though these alleged errors were timely corrected prior to the 2009 trial, and Judge Eyler erred in sustaining these rulings without review or reconsideration. (September 30, 2009, p.21, l.20;#28675853). “A mistrial dissolves all the evidentiary rulings made in that proceeding; it is as if there had been no trial on that issue…” People v. Sons, 164 Cal.App.4th 90, 99 (2008); People v. Jamerson, 580 P.2d 805, 806 (1978).
s. Striking timely endorsed witnesses from and over 100 exhibits on the grounds that they were not timely due to an error with the Lexis Nexis filing system. (#28674324;#27318767); J.P. v. District Court, 873 P.2d 745, 751 (Colo.1994); Genova v. Longs Peak Emergency Physicians, 72 P.3d 454, 466 (Colo. App. 2003); Kwik Way Stores, Inc. v. Caldwell, 745 P.2d 672, 677 (Colo.1987).
t. Allowing State Farm’s subpoena duces tecum (#18558744;#25753340;#26663669;June 18, 2008, p.7,l.3-5), served on Dr. Centeno just 3 days before his testimony when the information sought should have been obtained during discovery. “[I]f an inspecting party needs further information concerning documentary material, the formal method of eliciting the same is by further discovery procedure. Fields v. McNamara, 540 P.2d 327 (Colo.1975).

E. THE TRIAL COURT ERRED IN DISMISSING THE ACTION FOR FAILURE TO PROSECUTE AND FAILURE TO FOLLOW COURT ORDERS WHEN APPELLANTS WERE ACTIVELY PROSECUTING THE CASE AT THE TIME OF DISMISSAL AND WERE READY FOR TRIAL ON THE DATE STATE FARM’S MOTION TO DISMISS WAS GRANTED.

Appellants’ case was dismissed for failure to prosecute and failure to comply with court orders on October 9, 2009 because they were one day late filing their amended witness list with the court.
1. Standard of Review
A court’s dismissal for failure to prosecute is reviewed for abuse of discretion on appeal. Lanes v. Scott, 688 P.2d 251 (Colo.App.1984). “[t]he choice of an appropriate sanction for a violation of a discovery rule lies within the sound discretion of the trial court.” People v. Copeland, 976 P.2d 334 (Colo. App. 1998).

2. Law and Analysis
A dismissal for failure to prosecute is improper if the party is actively prosecuting the case when the dismissal order is made. Farber v. Green Shoe Mfg. Co., 42 Colo. App. 255, 596 P.2d 398 (1979). As evidenced by the transcript of the October 9, 2009 hearing, Appellants were ready to proceed to trial on the day of dismissal.
Though State Farm’s only basis for requesting dismissal was that Appellants’ amended witness list was one day late (#27419873), the court advocated for State Farm and added numerous additional reasons for dismissal, summarized herein. The judge specifically stated that dismissal was based upon “a pattern of really nonsensical, almost irrational actions…” and not for any single reason (October 9, 2009, p.13). Since the judge dismissed Appellants action because of the cumulative nature of the reasons discussed herein, if any one of these reasons fails, the dismissal must be reversed.
a. “(U)nbeknownst to me…, Judge Vigna had entered a Trial Management Order….”
Judge Eyler was unaware Judge Vigna entered a TMO, and thus issued a PTO on January 8, 2009. From that date forward, all parties followed her PTO and not the TMO because the two orders conflicted. In fact, State Farm filed its jury instructions on October 6, 2009, as required by the PTO (#23228600).
Although Judge Eyler’s above stated reason for dismissing Appellants’ case was non-compliance with Judge Vigna’s TMO (#21430843), as the following transcript shows, Judge Eyler had been unaware of the previous TMO and had entered her own PTO:
“…unbeknownst to me…Judge Vigna had entered a Trial Management Order in this case on September 9, 2008…back in January I had not plowed through twenty-five files to find that order. I issued another Pre-Trial Order on January 8, 2009. That order conflicts…with the order Judge Vigna ordered…”

(October 9, 2009, p.10, l.23-26; p.11, l.1-4).
b. “That Witness List that was submitted nearly at midnight on October 6th, twenty-four hours later than the deadline that the court imposed…”
Appellants had fully prepared their witness and exhibit lists prior to the September 30, 2009 hearing. At that hearing, after the judge issued numerous orders striking nearly all of Appellants exhibits and witnesses, Appellants were given just three business days to prepare replacement witnesses and exhibits:
THE COURT:…we’re looking at a much more restricted issue before the Court. So obviously not everything is relevant to that issue. So I need you to get a list of witnesses and exhibits to Mr. Levy, when can you do that?

MR. MUHR: I don’t know your honor…we’d have to go through thousands of pages of stuff and sort out what’s —

THE COURT: Well, but you’ve had a year to do that.

MR. MUHR: In light of the Court’s recent rulings in the last couple of days it changes the nature of our witnesses —

THE COURT: Well, if you don’t give me a date I’m going to give you a date.

MR. MUHR: Well, I guess, one week from today. What is today? Maybe next — today is —

THE COURT: Today is September the 30th.

MR. MUHR: Today’s the 30th so that would be the 7th.

MR. LEVY: We think it should be Monday your Honor. We have a lot of stuff to do here here to get ready for trial, particularly, if its going to be four hundred exhibits.

THE COURT: I think it has to be Monday, Mr. Muhr. So October the 5th.

MR. LEVY: And we can give our response —

MR. MUHR: Well my problem Your Honor is I have an appellate brief due Friday that’s going to be a forty page document on a case in the Colorado Court of Appeals. I have a response to a motion to dismiss due on a case Friday, on a case I haven’t started that motion to dismiss yet and so if I just focus these next two days on those documents, it would be fourteen hour work days just on those things. And then…I don’t have staff on the weekend. The first time I’m gonna get a chance to look at this is Monday the 7th, so maybe we could do it Tuesday and have some people come in and work around the clock on, you know, on Monday and get it to them on Tuesday.

* * *
THE COURT: It has to be done by October the 5th and your response, you said you could have that by —

MR. LEVY: Forty-eight hours we could have it done by Wednesday evening and we work weekends sometimes, that’s —there’s no question about that.

MR. MUHR: Well I don’t have the staff on the weekends. Alright, the 5th?

THE COURT: Yes.

MR. MUHR: Is there a time, is it — can I get to him at five minutes to midnight or is there a —

MR. LEVY: I don’t care, I mean, as long as we have —

THE COURT: So long as its done on [Monday] the 5th.

MR.LEVY: As long as we have all day Tuesday and Wednesday, we’re fine.

September 30, 2009, p.51, l.8 through p.55, l.9.
Further support for Appellants’ position is contained in the following transcript:
MR MUHR:…it was my understanding and perhaps I misunderstood the Court that when we were together last time, the Court directed that I provide Mr. Levy with my proposed list of exhibits. It was my understanding that we were to do that on Monday which I advised the Court would be impossible for me and I don’t believe that it could be achieved but I did file that about three minutes before midnight on Monday and I thought the Court wanted me to provide him with our Proposed Stipulated Exhibits so that we could discuss what would be included in the jury notebook. It was not my understanding that I had to give him a Witness List. However, we did give him a Witness List back in…in June of ’08 and we gave him our Proposed Witness List and Exhibit List back in June of ’08 and all the witnesses that we gave in June ’08, are the same witnesses on our list now…Next, every document that we are offering in this case, are the State Farm documents. If the…if the Court looks at our…at our flow charts and our attached documents to the flow charts, they all contain the…date stamp numbers of the State Farm documents. They’re coming right from the Claims Activity Log…

(October 9, 2009, p.7, l. 9-23).

Furthermore, the following additional excerpts from the September 30, 2009 transcript show, because the Court’s prior rulings resulted in the same issues merely being tried again, and with the same State Farm’s bates-stamped documents, Mr. Levy could not claim surprise and suffered no prejudice by his receipt of Appellants’ witness list one day after the Court’s deadline, especially when Mr. Levy was granted two extra days to submit his witness/exhibit lists.

MR LEVY: We tried this for five and a half weeks. There’s no way to rationally argue that we’re not all ready for this trial on what we think we have left…

* * *
THE COURT:…I think where you were last time is essentially —- the case was ready to be tried a year ago…There’s no reason why anything needs to be really sort of set up any differently than it was a year ago. We’re just doing it again…we’re ready to go forward…

(September 30, 2009, p.60, l.25; p.61, l.4-10).

c. “It includes witnesses that have been previously excluded”
The court also cited, as a reason for dismissal, Appellants’ proposed “may call” witness list included witnesses which were previously excluded, for alleged evidentiary/discovery errors.
Since Appellants’ had corrected any such evidentiary/discovery errors from the 2008 mistrial, and had properly endorsed these witnesses for the 2009 trial, it was improper for them to be excluded.
Appellants were not required to submit only will-call witnesses. There was no basis at law for the court to prevent the testimony of may-call witnesses properly and timely disclosed; and certainly no legal or factual basis to dismiss the case because the may-call list included potential rebuttal witnesses.
d. “That was also the timeframe in which the parties were supposed to submit…jury instructions…”
The court also dismissed Appellants’ case for not timely submitting jury instructions on October 5, 2009, but rather on October 6, 2009.
At the September 30, 2009 hearing, the judge changed the due date only for the witness list and exhibit list, not for jury instructions. State Farm’s jury instructions were submitted on the same day as Appellants, but it was not sanctioned while this was used to support dismissal for Appellants. Further, the jury instructions were the same instructions submitted for the 2008 mistrial.
e. “Nothing was attached to that [exhibit list].”

Another basis for dismissal was that exhibits were not attached to Appellants’ exhibit list. The parties were required to submit an “exhibit list,” five working days before the October 13, 2009 trial, or by October 6, 2009. Appellants timely complied with the PTO (#23228600;#27438511;#27438515; #27438531;#27438536).
No court order required exhibits to be attached to the exhibit list, and all referenced documents were State Farm documents and had been previously disclosed.
Furthermore, although the PTO scheduled a readiness hearing for September 17, 2009, at State Farm’s request the readiness hearing was cancelled and replaced by a status conference held on September 30, 2009, less than two weeks before trial. Judge Eyler delayed ruling on many outstanding motions until just before and during the September 30, 2009 hearing (#27318767;#27298693; #27281436;#27253290). As a result, Appellants’ counsel was required to drastically change his trial strategy less than two weeks before trial.
f. “(L)ist of exhibits…They are not grouped together in any order that I can figure out. The date [sic] stamp numbers range all over the place.”
Judge Eyler ruled that Appellants’ exhibit list appeared to be “all over the place” and it was unreasonable to “expect the defendant…the defense in this case to be able to plow through all those exhibits and make sense of them only five days before trial…” (October 9, 2009, p.11, l.3). However, the referenced exhibits were State Farm documents from their files, and the numbers that “range all over the place” were placed on the documents by State Farm. Appellants’ attorney had no control over the bate-stamps on the documents.
Appellants’ attorney used sound, independent, and professional judgment to organize the documents for presentation at trial. It was inappropriately used as a basis for dismissal merely because the court did not agree.
g. “[Plaintiffs] filed a Motion for Reconsideration which…violates Judge Vigna’s Pretrial Order… of September the 9th…”
The court also based its dismissal on Appellants’ filing of a Motion for Reconsideration, stating this “violates Judge Vigna’s…Pretrial Order…wherein he is not to file any further Motions for Reconsideration.” (October 9, 2009, p.12, l.15-6).
As set forth in E(2)(a) above, Judge Eyler’s January 8, 2009 PTO was controlling. Further, Judge Vigna’s PTO did not state Appellants could not file any motions for reconsideration. It specified any party wishing to have an order reconsidered must first request leave of court. The TMO entered by Judge Vigna on September 9, 2008 clearly anticipated reconsideration of orders entered in the 2008 mistrial, but merely changed the procedure for requesting reconsideration (#21430843).
Further, at the hearing on September 30, 2009, Mr. Levy made two Motions for Reconsideration without requesting leave of court. (September 30, 2009, p.56-7;60). Not only did the court not reprimand or sanction State Farm for not having first obtained leave of court before requesting reconsideration, but both motions were granted.
h. “That was also the timeframe in which the parties were supposed to submit a joint exhibit book…”
Another reason for dismissing Appellants’ case was that Judge Vigna’s TMO “required that counsel were to meet no later than ten working days prior to trial in order to try to get together the contents of the jury notebooks.” (October 9, 2009, p.11, l.9-10). However, as the following excerpt shows, both the judge and the State Farm’s counsel saw no value in a jury notebook being used at trial and neither thought Appellants’ exhibits should be included in jury notebooks:
MR. LEVY: This may not be a jury notebook case is what I’m gonna say because it may end up the jury needs five volumes a piece.

THE COURT: Okay.

MR. LEVY: Now, what we did last time is we brought in overhead projectors and did that kind of stuff. Again, I don’t care if anybody wants a jury notebook I’m happy to do it.

THE COURT: No, that makes sense now that you mention it.

MR. LEVY: And, but again, my experience is if we have a case with this many, you know, with two feet worth of exhibits its kind of silly to have a jury notebook…

THE COURT: As far as Exhibits but, I mean, they — okay, I’m going to give them a notebook as far as taking notes, the basic instructions and some of that.

(September 30, 2009, p.51-6).

i. “Trial briefs were not filed by Mr. Muhr as required by the Trial Management Order.”
Appellants submitted a brief on October 8, 2009 to assist the court in deciding issues that may arise, but it was not required by the PTO (#23228600). State Farm submitted no briefs at all. Again, the court was holding Appellants to a higher standard than State Farm.
j. “Itemization of Non-Economic Damages was not provided as required by (Judge Vigna’s) Trial Management Order”
This case had proceeded to trial once before, and State Farm was aware of the claimed non-economic damages. Despite this, on July 16, 2008 (#20674388), Appellants voluntarily submitted a detailed listing of the damages claimed to assist the court with the issues to be presented. Appellants C.R.C.P. 26(a) disclosures filed in June, 2009 (#25753340) also included these damages.
k. “[Appellants] filed an appeal which was clearly…I think…without any basis and which has been summarily dismissed by the Court of Appeals.”
At the hearing on September 30, 2009, Appellants requested a stay of the proceedings at the trial court as a necessary prerequisite to requesting a stay from the Colorado Supreme Court in conjunction with their extraordinary writ under C.A.R. 21 (#27436986). The Supreme Court’s decision not to hear the C.A.R. 21 appeal does not mean the claims were without merit.
This court erroneously sanctioned Appellants with dismissal for exercising their legal rights by filing a Petition for Extraordinary Writ under C.A.R. 21, asking the Colorado Supreme court to review the court’s rulings on September 24, 28, 29 and 30, 2009, which profoundly prejudiced Appellants in the litigation of their claims (#27436986).
l. “I agree with Mr. Levy…that…it is virtually impossible for his client to adequately prepare for trial due to the actions of Mr. Muhr…”
The court determined Appellants’ counsel had engaged in “a pattern of really nonsensical almost irrational action that if not done intentionally, it seems to be done…designed to obfuscate and confuse and to make it almost impossible for the defense counsel to adequately prepare.”
However, Mr. Levy, on September 30, 2009, stated he was ready to go to trial:
Your Honor, all parties are ready to try what I think the Court has ordered we are trying which is whether or not there was any, you know, reckless or intentional, unreasonable delay or denial with respect to the original State Farm evaluation of the case and settlement offers and that sort of thing which is what these cases are about.

(September 30, 2009, p.14, l.22-26; p.15, l.1-2).

Any confusion was the direct result of numerous insurance documents required to show the history of State Farm’s behavior regarding Mr. Shaffer’s claims:
MR. MUHR: The flow charts merely identify the date stamped documents…in the State Farm file. All we’re trying to do is take thousands of pages of records and somehow put these into a logical, organized system by saying these are the documents that prove lack of investigation. These are the documents that prove that they offered substantially less [than the value of the] claim. These are the documents that prove whatever…we’re seeking to prove because it’s a confusing array of documentation. All we’re doing is identifying the bate-stamps [documents]that support our theory in this confusing file…

(October 9, 2009, p.9, l.10-16).

m. “Mr. Muhr has failed to make any attempt to confer with the defense counsel in this matter…”
Appellants cooperated with the discovery process, including the scheduling of State Farm’s depositions, to the extent allowed by the rules.
However, the continued misconduct of State Farm’s attorney made conferral futile. Until September 29, 2009, Mr. Levy was a properly endorsed witness. Appellants were well aware Mr. Levy would not be agreeable to anything requested during conferral, making any efforts at conferral useless. C.R.C.P. 121, §1-15(9). Accordingly, dismissal of Appellants’ case for failure to confer when conferral was prohibited by the rules and useless under the circumstances was inappropriate.
n. Written Order dated January 6, 2010
On January 6, 2010, the court issued a written order that further expanded upon the reasons for dismissal given at the hearing on October 9, 2009. This order was prepared by Mr. Levy and submitted to the court for signature.
Though this order stated “[t]he Court has considered alternative sanctions short of dismissal…,” at no point did the judge consider any alternative sanction. Transcript, October 9, 2009; See People v. Lee, 18 P.3d 192, 196 (Colo.2001); See also, Steiner v. Minnesota Life Ins. Co., 85 P.3d 135, 142 (Colo.2004).
“[A]mong the factors that a trial court should consider in fashioning the appropriate sanction are (1) the reason for the delay in providing the requisite discovery; (2) any prejudice a party has suffered as a result of the delay; and (3) the feasibility of curing such prejudice…” People v. Dunlap, 975 P.2d 723, 755 (Colo.1999). The court did not address any of these factors, meaning dismissal was inappropriate.
In response to State Farm’s October 6, 2009 Motion to Dismiss (#27419873), the trial court dismissed the action three days later. Then, in her January 6, 2010 dismissal order, the court determined that sanctions were not warranted for the manner in which Appellants prosecuted the lawsuit since the 2008 mistrial (#27419873;#28827051). Dismissal for a discovery violation is beyond the discretion of the trial court. People v. Daley, 97 P.3d 295 (Colo.App.2004). Finally, the court could have briefly continued the trial as requested by both parties, particular since the court specifically found that Plaintiffs’ Motion to Continue had merit and denied State Farm’s sanctions request relative to this motion (#28827113).
CONCLUSION
As requested in the forgoing brief, Appellants respectfully request that this Honorable Court grant the relief requested in each section herein and set forth in the above index. Appellants further request a new trial and a change of venue.

Dated this 30th day of March, 2011.
Respectfully submitted,

/s/William Muhr, LLP
________________________
Attorney for Appellants
William Muhr (# 018093)