Falcon v. Saint-Veltri

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 27 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk

ARIEL FALCON,

Plaintiff - Appellant, No. 01-1288
v. (D. Colorado)
JOSEPH SAINT-VELTRI, Esquire, (D.C. No. 99-D-1405)

Defendant - Appellee.

ORDER AND JUDGMENT *

Before HENRY, BRISCOE, and MURPHY, Circuit Judges.

After examining Appellant’s brief and the appellate record, this court has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The case is therefore ordered submitted without oral argument.

Proceeding pro se, Ariel Falcon appeals the district court’s dismissal of the

civil action he brought against defendant Joseph Saint-Veltri. Falcon filed an

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
amended complaint on September 24, 1999, alleging: (1) negligent

misrepresentation; (2) breach of fiduciary duty; and (3) fraud. All of the

allegations were based on Falcon’s retention of Saint-Veltri to represent him in

post-conviction matters arising out of a 1984 criminal conviction. See United

States v. Falcon, 766 F.2d 1469 (10th Cir. 1985).

On July 14, 2000, Saint-Veltri filed a motion to dismiss the breach of

fiduciary duty and fraud claims based on Falcon’s failure to file a certificate of

review pursuant to § 13-20-602 of the Colorado Revised Statutes. The matter was

referred to a magistrate judge who recommended that the two claims be

dismissed. The magistrate judge also entered an order denying Falcon’s motion

for the appointment of counsel. The magistrate’s recommendation was adopted

by the district court and the court entered an order dismissing the claims. The

court also affirmed the denial of Falcon’s motion for the appointment of counsel.

Thereafter, Saint-Veltri filed a motion to dismiss the negligent misrepresentation

claim. The district court again adopted the magistrate judge’s recommendation

and granted the motion. Falcon filed a notice of appeal and a motion to proceed

in forma pauperis (“ifp”) on appeal. The district court denied Falcon’s ifp

motion. Falcon has appealed the denial of his ifp motion and has filed an

additional ifp motion with this court. We grant Falcon’s motion to proceed in

-2-
forma pauperis on appeal, thereby mooting the appeal of the district court’s

denial of the earlier ifp motion.

In this appeal, Falcon asserts two arguments relating to the dismissal of the

three claims contained in his complaint. First, he alleges that expert testimony

was not required to prove any of the claims; thus, he was not required to provide a

certificate of review. 1 Falcon alleges, in the alternative, that letters he obtained

from several attorneys were sufficient to satisfy the certificate of review

requirement. Falcon also asserts that the court abused its discretion when it

refused to appoint counsel to represent him. Exercising jurisdiction pursuant to

28 U.S.C. § 1291, we affirm in part and reverse in part.

Under Colorado law, a certificate of review must be filed in civil actions

where expert testimony is necessary to establish a prima facie case of professional

negligence. See Martinez v. Badis, 842 P.2d 245, 249 (Colo. 1992); Colo. Rev.

Stat. § 13-20-601. The certificate of review must be prepared by a licensed

professional who has expertise in the area of the alleged negligent conduct, must

state that the professional has reviewed the relevant facts, and must conclude that

1
Although the magistrate judge expressed his belief that Falcon did not
raise this argument in opposition to Saint-Veltri’s motion to dismiss, our review
of the record indicates that Falcon clearly asserted that expert testimony was not
necessary to prove any of his claims. In any event, Saint-Veltri does not maintain
that the argument is waived.

-3-
the plaintiff’s claim of negligence does not lack substantial justification. See

Colo. Rev. Stat. § 13-20-602(3)(a).

We agree with the district court that Falcon’s claims alleging negligent

misrepresentation and breach of fiduciary duty arise from Saint-Veltri’s alleged

professional negligence and Falcon would not be able to prove those claims

without expert testimony. See Kelton v. Ramsey, 961 P.2d 569, 571 (Colo. App.

1998) (“Except in the clearest cases, expert testimony is necessary to establish the

standards of acceptable professional conduct in legal malpractice cases.”). Thus,

a certificate of review was necessary. See Martinez, 842 P.2d at 249. We also

agree with the district court’s conclusion that the letters submitted by Falcon do

not meet the certificate of review requirements because they do not: (1) purport

to be written by a person with expertise in post-conviction criminal matters; (2)

indicate that the author has reviewed the facts relevant to Falcon’s claims; and

(3) conclude that Falcon’s claims do not lack substantial justification. See Colo.

Rev. Stat. § 13-20-602(a)(3). Thus, we affirm the district court’s dismissal of the

negligent misrepresentation and breach of fiduciary duty claims for substantially

the reasons stated by the district court.

We further conclude, however, that the district court improperly dismissed

Falcon’s fraud claim. Falcon alleges that he retained Saint-Veltri to provide

-4-
professional services and that Saint-Veltri, to date, has not performed the services

or returned Falcon’s retainer. In his amended complaint, Falcon alleged,

On or about December 8, 1988 to March 1, 1999, in the city of
Denver, State of Colorado, defendant Joseph Saint Veltri made the
following false and fraudulent representations to Plaintiff: Defendant
stated that for $15,000.00 retainer he would file a brief to the Tenth
Circuit Court of Appeals and/or a federal clemency pardon to the
United States Justice Department Office of Pardons.

The representations made by the defendant were false in that the
appeal nor the pardon briefs were ever filed.

Defendant, at the time of representation, knew [the representations]
to be false and made the statements with intent to defraud and
deceive the Plaintiff and to induce the Plaintiff to retain the
defendant.

Contrary to Saint-Veltri’s argument, Falcon could prove this claim without

presenting expert testimony as to what post-conviction relief Falcon may have

been entitled. Construed liberally, 2 Falcon’s claim is not that any action or

inaction on the part of Saint-Veltri was inappropriate in light of the facts and

circumstances of his case. He is, instead, asserting a straight-forward fraud claim

unrelated to either the caliber of any services provided by Saint-Veltri or any

assertions made by Saint-Veltri as to the possibility of success. The claim could

be proved without expert testimony. 3 Thus, while we express no opinion on the

2
Because Falcon is proceeding pro se, it is our duty to liberally construe his
pleadings. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam).
3
Saint-Veltri also argues that Falcon’s “repeated admissions” that expert
(continued...)

-5-
merits of Falcon’s fraud claim or whether it was properly pleaded, we nonetheless

hold that the district court erred when it concluded that the claim should be

dismissed because Falcon failed to file a certificate of review for that claim.

Accordingly, we reverse that portion of the district court’s order dismissing

Falcon’s fraud claim.

Falcon also appeals the district court’s denial of his motion for appointment

of counsel. We review the district court’s disposition of that motion for an abuse

of discretion. See Miller v. Glanz, 948 F.2d 1562, 1572 (10th Cir. 1991). We

have reviewed the record and considered the arguments of the parties and

concluded that the district court did not abuse its discretion when it denied the

motion. Accordingly, we affirm the denial of Falcon’s motion for appointment

of counsel for substantially the reasons stated by the district court. In addition,

3
(...continued)
testimony was necessary to prove his claims are judicial admissions. Judicial
admissions, however, are “formal, deliberate declarations which a party or his
attorney makes in a judicial proceeding for the purpose of dispensing with proof
of formal matters or of facts about which there is no real dispute.” Kempter v.
Hurd, 713 P.2d 1274, 1279 (Colo. 1986). Falcon’s statements are not judicial
admissions.

-6-
we deny the motion for appointment of counsel that Falcon has filed with this

court. We also deny Falcon’s motion to present oral argument.

ENTERED FOR THE COURT

Michael R. Murphy
Circuit Judge

-7-