Falcon v. Saint-Veltri, 10th Cir. (2001)

F I L E D
UNITED STATES COURT OF APPEALS
United States Court of Appeals

Tenth Circuit
TENTH CIRCUIT
NOV 27 2001
PATRICK FISHER
Clerk
ARIEL FALCON,
v.
Plaintiff - Appellant,
JOSEPH SAINT-VELTRI, Esquire,
No. 01-1288
(D. Colorado)
(D.C. No. 99-D-1405)
Defendant - Appellee.
ORDER AND JUDGMENT *
Before HENRY, BRISCOE, and MURPHY, Circuit Judges.
After examining Appellants 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 courts 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This order and judgment is not binding precedent, except under the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 Falcons 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 Falcons 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 Falcons motion
for the appointment of counsel. The magistrates recommendation was adopted
by the district court and the court entered an order dismissing the claims. The
court also affirmed the denial of Falcons 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 judges 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 Falcons ifp
motion. Falcon has appealed the denial of his ifp motion and has filed an
additional ifp motion with this court. We grant Falcons motion to proceed in
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forma pauperis on appeal, thereby mooting the appeal of the district courts
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
Although the magistrate judge expressed his belief that Falcon did not
raise this argument in opposition to Saint-Veltris 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.
1
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the plaintiffs claim of negligence does not lack substantial justification. See
Colo. Rev. Stat. 13-20-602(3)(a).
We agree with the district court that Falcons claims alleging negligent
misrepresentation and breach of fiduciary duty arise from Saint-Veltris 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 courts 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 Falcons claims; and
(3) conclude that Falcons claims do not lack substantial justification. See Colo.
Rev. Stat. 13-20-602(a)(3). Thus, we affirm the district courts 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
Falcons 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 Falcons 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-Veltris argument, Falcon could prove this claim without
presenting expert testimony as to what post-conviction relief Falcon may have
been entitled. Construed liberally, 2 Falcons 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
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).
2
Saint-Veltri also argues that Falcons repeated admissions that expert

(continued...)
-5-
merits of Falcons 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 courts order dismissing
Falcons fraud claim.
Falcon also appeals the district courts denial of his motion for appointment
of counsel. We review the district courts 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 Falcons motion for appointment
of counsel for substantially the reasons stated by the district court. In addition,
(...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). Falcons statements are not judicial
admissions.
3
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we deny the motion for appointment of counsel that Falcon has filed with this
court. We also deny Falcons motion to present oral argument.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

JOSEPH SAINT-VELTRI, Esquire,

(D.C. No. 99-D-1405)

amended complaint on September 24, 1999, alleging: (1) negligent

Saint-Veltri also argues that Falcons repeated admissions that expert

merits of Falcons fraud claim or whether it was properly pleaded, we nonetheless

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