The 7th Annual Nuts & Bolts CLE Friday, December 10, 2010 Presented by: The 19th Judicial District Bench Bar Committee Sponsored by: The Weld County Bar Association, Inc. www.weldcountybar.org
1. Seminar Schedule 2. Program Faculty Seventh Annual 19 th Judicial District Bench-Bar Committee Nuts & Bolts CLE TABLE OF CONTENTS 3. 19 th Judicial District Bench Bar Committee Information 4. State of the Courts 5. Breaking Down the World of Business Immigration 6. Amending Recorded Covenants/HOA Update 7. Criminal Law Update 8. DUI Basics & Tips for Criminal Trial Attorneys 9. Ethical Issues in Online Legal Advertising & Social Media 10. Family Law Update 11. Personality Disorders and How to Deal with them in Your Family Law Practice 12. Civil Case Law and Legislative Update 13. Ethics with John 14. Registration List 15. Weld County Attorney List 16. WCBA Bar Call Newsletter December 2010
The 7th Annual Nuts & Bolts CLE Seminar Schedule 7:30 a.m. Registration Opens / Continental Breakfast 8:15 a.m. State of the Courts - The Honorable James F. Hartmann, Chief Judge, 19th Judicial District 8:30 a.m. Practice Pointers from the Bench (a Q&A Session) Featuring the following from the 19th Judicial District: - The Honorable James F. Hartmann, Jr. Chief Judge - The Honorable Julie Hoskins, District Court Judge - The Honorable Elizabeth Strobel, District Court Judge - The Honorable Thomas J. Quammen, District Court Judge - The Honorable Dana Nichols, County Court Judge - Magistrate Mark Gonzales, County Court Magistrate - Moderated by William L. Crosier, Esq. 9:30 a.m. Networking Break 9:50 a.m. Breakout Sessions (see next page) 11:50 a.m. Networking Buffet-Style Lunch (included with registration) 12:30 p.m. Ethical Issues in Online Legal Advertising & Social Media - Special Guest Speaker: Josh King, Esq., General Counsel, AVVO, Inc. 2:00 p.m. Networking Break 2:20 p.m. Breakout Sessions (see next page) 3:30 p.m. Networking Break 3:50 p.m. Ethics with John - Magistrate John Jostad, District Court Magistrate, 8th Judicial District 4:50 p.m. Adjourn
The 7th Annual Nuts & Bolts CLE Breakout Sessions Track A (Civil-AM): 9:50 a.m. Breaking Down the World of Business Immigration - David A. Harston, Esq., Elkind Alterman Harston, PC 11:00 a.m. Amending Recorded Covenants/HOA Update - Lauren C. Holmes, Esq. Orten Cavanagh Richmond & Holmes, LLC Track B (Civil-PM): 2:20 p.m. Civil Case Law and Legislative Update - The Honorable Elizabeth Strobel, District Court Judge, 19th Judicial District, Jennifer Lynn Peters, Esq., Brett Payton, Esq., & Michael C. Payne, Esq., Otis, Coan & Peters, LLC Track C (Criminal): 9:50 a.m. Criminal Law Update - The Honorable Thomas Quammen, District Court Judge, 19th Judicial District and Shannon D. Lyons, Esq., Collins Liu & Lyons, LLC and of counsel to Otis, Coan & Peters, LLC 11:00 a.m. DUI Basics & Tips for Criminal Trial Attorneys - Jerry Roselle, Esq. Track D (Domestic): 2:20 p.m. Family Law Update - The Honorable Julie Hoskins, District Court Judge, 19th Judicial District and Amy Antommaria, Esq., Antommaria & Sledge, LLC 2:50 p.m. Personality Disorders and How to Deal with them in your Family Law Practice - Robert M. Smith, Esq. and Dr. Kathleen McNamara
IT S TURKEY TIME AGAIN! Weld County Legal Services needs your help! Every $10.00 donation will buy one turkey! Last year, WCLS donated over 75 turkeys to the Weld County Food Bank. This year, we want to double that amount so every family in Weld County can enjoy a true turkey dinner this holiday season. Law Firm Challenge: The attorneys at Otis, Coan & Peters, LLC are committing to raise at least $100.00 for the WCLS turkey fund this year. We challenge the other law firms in Weld County to match or exceed this donation! A special turkey prize will be waiting for any firm that can raise more money than OCP! To donate, please send your $10.00 or more to: Jody Pic WCLS 1122 9th Street, Suite 202 Greeley, CO 80631 For more information, please call Jody Pic at 970-310-8367 or 970-356-9770.
Seventh Annual 19 th Judicial District Bench-Bar Committee Nuts & Bolts CLE PROGRAM FACULTY The Honorable James F. Hartmann, District Court Judge, 19 th Judicial District Judge Hartmann was appointed to the district court in 2003 after 13 years in the District Attorney's Office. His last position was as the Weld County Chief Deputy District Attorney. He obtained his law degree from the University of Idaho in Moscow, Idaho. He was appointed Chief Judge of the Nineteenth Judicial District on July 1, 2009. The Honorable Julie Hoskins, County Court Judge, 19 th Judicial District Judge Hoskins was appointed to the District Court bench in July 2007, after serving nearly two years on the County Court bench. Previously, she served as a district court magistrate for two years. Prior to serving as a magistrate, Judge Hoskins was in private practice for ten years with the firm of Houtchens, Houtchens and Greenfield. Judge Hoskins is a graduate of The Dickinson School of Law located in Carlisle, Pennsylvania. She received her undergraduate degree from Bethany College located in Bethany, West Virginia. Magistrate John A. Jostad, Larimer County Court, 8 th Judicial District Magistrate Jostad was appointed magistrate on February 1, 2006. He handles the domestic/juvenile docket. Prior to his appointment, Magistrate Jostad had been in private practice for 21 years. His practice while in private practice focused on administrative law, litigation and professional responsibility, with a specialty focus on aviation and employment matters. Magistrate Jostad is a graduate of the University of Denver College of Law. The Honorable Dana Nichols, County Court Judge, 19 th Judicial District Judge Nichols was appointed to the County Court bench in 2007. She served as a Deputy Public Defender for nearly 10 years in the Greeley, Pueblo, Colorado Springs, and the State Appellate offices. She also spent three years in private civil practice in Denver with the firm of Kennedy & Christopher, P.C. Judge Nichols obtained her law degree from the University of Colorado School of Law and has an undergraduate degree in biological science from Colorado State University. Judge Nichols is currently assigned to Division 5, hearing misdemeanor, traffic offenses, and civil matters.
The Honorable Thomas Quammen, District Court Judge, 19 th Judicial District Judge Quammen was appointed to the District Court bench for the Nineteenth Judicial District in July of 2008. Prior to this appointment, he served as the Administrative Chief Deputy District Attorney for the Seventeenth Judicial District (Adams and Broomfield counties) from January 2005 to July 2008. He was with the District Attorney s Office for the Nineteenth Judicial District from June 1981 through December 2004, serving as the Assistant District Attorney for the last 16 years of that tenure. Born and raised in Greeley, Judge Quammen received his Bachelor of Arts degree from the University of Northern Colorado, Master s degree at the University of Colorado in Boulder and Juris Doctorate from the University of Missouri in Kansas City. The Honorable Elizabeth Strobel, District Court Judge, 19 th Judicial District Judge Strobel was appointed to the district court bench effective July 1, 2009. She formerly presided in Division 7, the domestic relations and dependency neglect docket she covered as a magistrate prior to her judicial appointment. She currently handles civil and family law matters. Judge Strobel received her undergraduate degree from Montana State University in 1974 and her Juris Doctorate from the University of Colorado in 1977. She was with the Weld District Attorney s Office for five years and began private practice, emphasizing family law, in 1983. The Honorable Dinsmore Tuttle, District Court Judge, 19 th Judicial District JudgeTuttle was appointed District Court Magistrate in October of 1997. She presided over the delinquency docket for three years and then in the Family Court, hearing dependency & neglect and domestic relations cases. In January 2009, she became a district court judge presiding primarily over a criminal docket. Judge Tuttle graduated from the University of Denver Law School in 1982. She served as a public defender in Adams, Weld and Larimer Counties before going into private practice in 1990. She currently serves on the Standing Committee on Family Issues. Judge Tuttle was the recipient of the 2007 Colorado Judicial Instutute Magistrate of the Year award. Magistrate Mark Gonzales, Weld County Court, 19 th Judicial District Magistrate Mark Gonzales was appointed to his position in January of 2009. His current docket includes District Court child support, paternity, juvenile and domestic matters along with County Court civil, criminal, and small claims cases. He received his undergraduate degree from the University of Northern Colorado in 1994 and Juris Doctorate from the University of Denver in 2000. Prior to his appointment, he served as a Weld County Deputy District Attorney, Greeley Assistant City Attorney, as well as a private and corporate attorney. Magistrate Gonzales served on the Nineteenth Judicial District Judicial Nominating Commission as well as other boards. He currently is vice president of the Weld County Bar Association.
Amy Antommaria, Esq., Antommaria & Sledge, LLC Amy received a Bachelor of Science in Business Administration in 1990 and a Master of Arts in Liberal Studies in 1992 from Valparaiso University in northwest Indiana. She completed her Juris Doctor at the University of Denver, Sturm College of Law in 1999. After graduating from law school, Amy received an invaluable experience in the inner workings of the Colorado Judicial System as a Law Clerk for the Honorable Judge Harlan Bockman in the 17th Judicial District. In 2001, Amy joined Jorgensen, Motycka & Lewis, P.C. as an Associate Attorney where she practiced Family Law, Real Estate Law, Probate, Collections and other general litigation. In 2003, Amy was offered and accepted a Partner/Shareholder position at Jorgensen Motycka & Lewis, P.C. In August of 2005, Amy partnered with Krea Sledge to form the law firm of Antommaria & Sledge, LLC. Although Amy's focus is family law, which includes divorce, custody, child support, visitation, legal separation, and paternity, she accepts cases involving debt collection, real estate and general litigation. When not practicing law, Amy has volunteered her time to the Weld County Bar Association, Weld County Legal Services, Access to Justice Committee and the Women's Weld County Bar Association. Amy served as the President of the Women's Weld County Bar Association in 2005, Treasurer for the Women's Weld County Bar Association in 2006, President of the Weld County Bar Association for the 2006-2007 term and Treasurer for Weld County Legal Services for the 2007-2008 term. Public Service is very important to Amy including assisting individuals that are unable to afford legal services. Amy has donated her time to the local Call-a- Lawyer program, the Divorce/Allocation of Parental Responsibilities monthly informational meetings, Grandparent Rights meetings and annually receives appreciation for her many hours of pro bono services through Weld County Legal Services. David Harston, Esq. Elkind Alterman Harston, PC David (or Dave) has been practicing immigration law exclusively, including business, family, asylum and deportation defence, since 1999. David graduated from the University of Denver in 1998 with a law degree and a master's degree in International Studies. He has been a member of the American Immigration Lawyers Association since 1999, served on the AILA Colorado Chapter's Executive Committee from 2004 to 2009, and was the Chapter Chair for AILA Colorado from 2007-2008. David was named an "Up-and-Coming" lawyer by Law Week Colorado in 2007. He served as the vice chair for the government/board/bylaws working group on AILA's 2008 Strategic Planning Committee and a member of the Bylaws Committee (2008-2009). He is a member of the Colorado Bar Association, serves on the Executive Council for the Immigration Law Section (2009-11), and currently serves as the Section Chair (2009-10). He is a recipient of 1998 Public Interest Law Group Grant to clerk at the Center for Human Rights Advocacy in Boulder, Colorado. In 1995, David interned in the Human Rights Program at the Carter Center in Atlanta, Georgia, founded by former President Jimmy Carter and former First Lady Rosalynn Carter. David received his bachelor's degree in history and philosophy from Allegheny College in Pennsylvania and studied abroad in Spain and Costa Rica. David is fluent in Spanish. When not practicing law, David enjoys spending time with his wife and two daughters. He also enjoys travelling, trail running, fishing, and an occasional Rockies baseball game.
Lauren Holmes, Esq., Orten Cavanagh Richmond & Holmes, LLC Lauren provides experienced and practical advice to associations as a transactional attorney. Lauren has extensive experience identifying legal issues in a proactive manner and recommending realistic solutions based upon a keen understanding of homeowners associations. In addition to providing day-to-day legal advice, she educates boards on how to conduct legal and effective meetings, has assisted in successfully amending governing documents and has assisted associations with communicating the importance of the amendment and obtaining the necessary owner approvals. Lauren aids associations in preventing the escalation of disputes with owners, and reviews association insurance policies for compliance with governing documents, Colorado law and best business practices. Lauren also assists associations in dealing with local governments on issues related to code enforcement, condemnation, new development, easements and other issues. Lauren is a frequent speaker at educational programs for managers and boards sponsored by both the firm and community organizations, and has been recognized for her dedication to the education of board members and managers. Josh King, Esq. General Counsel and Vice President of AVVO, Inc. Josh King is vice president of business development & general counsel of Avvo. He is responsible for the company's business development, professional and government relations, and legal affairs. Prior to joining Avvo in October 2007, Josh was director of business development for Clearwire, where he acquired new markets that expanded the wireless broadband company's market reach to include tens of millions of potential new customers. Previous to Clearwire, Josh was vice president, corporate development at AT&T Wireless, where he led much of the company's mergers and acquisitions work and was instrumental in the $46 billion sale of the company to Cingular, the largest cash transaction in history. Josh has also worked as general counsel for Cellular One of San Francisco and as a litigation attorney. Josh earned a J.D. from the University of California Hastings College of the Law and a bachelor's degree from the University of Oregon
Shannon Lyons, Esq., Otis Coan & Peters, LLC Shannon Lyons received his undergraduate degree in Economics from Grinnell College in Iowa in 1992. He received his law degree from Capital University in Columbus, Ohio in 1995, where he was a member of the Law Review. While in law school, Mr. Lyons interned with Justice Andrew Douglas of the Ohio Supreme Court and Rep. Vernon Sykes in the Ohio General Assembly. Mr. Lyons is admitted to practice in all courts in the State of Colorado and the United States District Court for the District of Colorado. Mr. Lyons is a member of the Colorado Bar Association and the Weld County Bar Association. Mr. Lyons is a regular presenter for the Weld County Bar Association s annual Nuts & Bolts seminar. In 2007, he was honored with the Professionalism in the Law Award by the Weld County Bar Association. Following his admission to the Colorado Bar in 1995, Mr. Lyons first worked for Colorado Rural Legal Services in Montrose. In 1997, he became a Deputy State Public Defender in Pueblo and later Greeley. He remained with the Greeley Public Defender s office through 2001, handling the most serious levels of criminal cases. In 2001, he was a founding member of the Greeley law firm of Collins, Liu & Lyons, LLP, where he currently remains as the Managing Partner. Mr. Lyons joined Otis, Coan & Peters, LLC, as of counsel, in 2010, and will be senior litigation counsel full time as of January 1, 2011. Mr. Lyons has specialized in trial litigation throughout his career. He has conducted over 100 trials, nearly all of which have been jury trials. Mr. Lyons has appeared before courts all across the State of Colorado in thousands of pre-trial hearings, and litigated complex constitutional and statutory issues. Mr. Lyons currently volunteers as a youth coach for the City of Greeley Recreation Department. He served as a member of the Board of Directors for the American Red Cross, Northern Colorado Chapter from 2007 to 2010. Mr. Lyons was a member of the City of Greeley Citizens Budget Advisory Committee from 2001 to 2006. From 1998 to 2002, Mr. Lyons served as a board member on the local Senate Bill 94 Committee. Mr. Lyons litigation practice with OCP emphasizes all aspects of real estate, business and banking related matters. Dr. Kathleen McNamara, PhD. Dr. Kathleen McNamara, Ph.D. is a psychologist practicing in Fort Collins, CO and is a member of the Colorado Chapter of the Association of Family and Conciliation Courts.
Michael C. Payne, Esq., Otis, Coan & Peters, LLC Mr. Payne received his undergraduate degree in Geography and American Studies from the University of Kansas in 1999. After spending a year teaching English in Paris and three years working for the Fulbright Program in New York City, Mr. Payne returned to the University of Kansas, where he obtained his law degree in 2007. As a law student, Mr. Payne served as a judicial law clerk to Judge Steve Leben, now of the Kansas Court of Appeals, and Judge Janice Russell, a Kansas district court judge. Mr. Payne also acted as the Managing Editor of the Kansas Journal of Law & Public Policy. Prior to joining OCP in 2008, Mr. Payne practiced in the area of covenants and homeowner s association law in the Denver area and, prior to that, was an associate attorney with a general practice firm in Greeley. Mr. Payne is admitted to practice in the State of Colorado and the United States District Court for the District of Colorado. He is a member of the Colorado Bar Association, the Weld County Bar Association, and the Larimer County Bar Association. Mr. Payne is a graduate of the inaugural class of Leadership Northern Colorado and is presently serving as the President of the Byron White Chapter of the American Inns of Court. In 2010, Mr. Payne was named a Colorado Rising Star by Colorado Super Lawyers Magazine and the 2010 Small Claims Court Mediator of the Year by the Weld County Bar Association. Mr. Payne presently serves on the Board of Directors for the Community Foundation Serving Greeley and Weld County and is a member of the Northern Colorado Commercial Association of Realtors. Mr. Payne s practice emphasizes real estate, business, commercial law and creditors rights, including litigation and transactional matters. Brett D. Payton, Esq., Otis, Coan & Peters, LLC Mr. Payton received his undergraduate degree in Sociology and Criminal Justice from Colorado State University in Fort Collins in 1996 and his Law Degree from Southwestern University School of Law in Los Angeles in 2002. Mr. Payton is admitted to practice in the state and federal courts in Colorado and California. In 2004 Mr. Payton joined Silva, Clasen and Raffalow, where he represented Mercury Insurance and provided coverage and claims guidance for the company on all Mercury s lines of coverage across the nation. Mr. Payton joined OCP in 2007. In May 2010, he was awarded the Frank Henderson Award for professionalism in the practice of law by the Weld County Bar Association. His practice focuses on real estate and business litigation.
Jennifer Lynn Peters, Esq., Otis, Coan & Peters, LLC Jerome B. Roselle, Esq. Ms. Peters received her undergraduate degree in Political Science from the Metropolitan State College of Denver in 1996, and her law degree from the University of Colorado at Boulder School of Law in 1999, where she was a published member of the Colorado Journal of International Law & Policy. Prior to joining OCP in 2002, Ms. Peters served as law clerk to the Honorable William L. West, Senior District Court Judge and former Chief Judge of the 19th Judicial District (Weld County). Ms. Peters is admitted to practice before all courts in the State of Colorado, the U.S. District Court for the District of Colorado, including the U.S. Bankruptcy Court, the 10th Circuit Court of Appeals, and the United States Supreme Court. Ms. Peters previously served as a vice-president and member of the executive council of the Colorado Bar Association, and is currently the President of the Weld County Bar Association. She is also currently a member of the City of Greeley s Civil Service Commission and has served as the Municipal Court Judge for the Town of Kersey since 2004. Ms. Peters practice emphasizes all areas of real estate, business and commercial litigation, probate litigation, and appeals. Mr. Roselle is an attorney in Fort Collins, Colorado whose practice emphasizes all areas of criminal law including: Assault; Burglary; Civil Forfeiture; Criminal Conspiracy; Criminal Defense; Criminal Forfeiture; Criminal Fraud; Criminal Investigation; Drivers License Suspension; Driving Under the Influence; Extortion; Extradition; Felonies; Forgery; Habeas Corpus; Homicide; Manslaughter; Misdemeanors; Murder; Parole and Probation; Search and Seizure; Theft; Traffic Violations; Weapons Charges; Wire Fraud; and Wiretapping. Mr. Roselle received his undergraduate degree from Benedictine College in 1978 and his law degree from Washington University in 1981. He is a member of the Larimer County Bar Association, the Colorado Criminal Defense Bar Association, the National Association of Criminal Defense Lawyers, the National Criminal Defense College, the National College for DUI Defense, and the Larimer County Criminal Defense Bar Association. He is admitted to practice in Colorado and is a Nationally Certified Breath Testing Expert. Robert M. Smith, Esq. Robert M. Smith., Esq., is an attorney and mediator in Windsor with an emphasis on high-conflict family law cases. He regularly serves as a child and family investigator and guardian ad litem throughout Northern Colorado and Denver.
COMPOSITION OF THE NINETEENTH JUDICIAL DISTRICT BENCH/BAR COMMITTEE AND CURRENT MEMBERS The Weld County Bench/Bar Committee shall be composed of the following: 1. The Chief Judge of the Weld County District Court or Designee; 2. The Chief Judge of the Weld County Court or designee; 3. A Municipal Court Judge or Designee; 4. The Weld County Bar Association President; 5. Three At Large Members of the Weld County Bar Association; and 6. The 19 th Judicial District Administrator or Designee. The Current members of the Weld County Bench/ Bar Committee are: 1. James F. Hartmann, Chief Judge of the Weld County District Court; 2. Michele Meyer, County Court Judge designated by the Chief Judge of the Weld County Court; 3. Michael D. Stewart, Evans Municipal Court; 4. William L. Crosier, Esq., at- large member 5. Todd Taylor, Weld County District Court, at- large member 6. Jennifer Lynn Peters, Esq., Weld County Bar Association President and at large member; 7. Cathi Walker, 19 th Judicial District Clerk s Office, designee of the District Administrator; and 8. Vacant at large member.
Seventh Annual 19 th Judicial District Bench-Bar Committee Nuts & Bolts CLE Presents STATE OF THE COURTS December 10, 2010 Presented by: Honorable James F. Hartmann, Chief Judge, 19 th Judicial District
Anticipated Courtroom Assignments as of January 2011 COURT DIVISION NAME LOCATION TYPES OF CASES HEARD District Court 1 Hartmann Court House 20 % Civil; 80% Water; 100% Probate; 25% County, Small Claims & Muni. Ct Appeals; 33 1/3% petitions to seal arrest and criminal records. District Court 3 Strobel Court House 20 % Civil; 33 1/3% Domestic Relations; 25% County, Small Claims & Muni Ct Appeals; 50% DR, JV Custody & Child Support Magistrate appeals; 100% minor name changes. District Court 4 Maus Court House 40 % Civil; 25% County, Small Claims & Muni Ct. Appeals; 100% Distraint Warrants and Rule 120s; 33 1/3% petitions to seal arrest and criminal records.. District Court 5 Tuttle Court House 20% Civil; 20% water as alternate water judge and acting as a water referee; 100% Mental Health; D & N and Domestic Relations Hearings; 25% Small Claims & Muni. Ct Appeals; 33 1/3% petitions to seal arrest and criminal records. County Court 6 New Judge Court House 33.3% Non-DV TPO/PPOs 20% Civil; 33.3% Non-DV Misdemeanors; 33.3% Misdemeanor Traffic County Court 7 Lococo Court House 33 1/3 % Domestic Relations; 50 % Dependency & Neglect; D & N Adoptions; 100 % Non CSEU Paternity; Family Treatment Court. County Court 8 Unfug Court House 33.3% Non-DV TPO/PPOs; 20% Civil; 33.3% Non-DV Misdemeanors; 33.3% Misdemeanor Traffic District Court 9 Kopcow Court House 33 1/3% Domestic Relations; 50% Dependency & Neglect; All Adoptions, except Div 7 D&N Adoptions; 100% D & N Magistrate Appeals; 50% DR, JV Custody & Child Support Magistrate Appeals District Court 11 Hoskins Plaza West 22% Criminal & Extraditions and Drug Court District Court 12 Kerns Plaza West 26% Criminal & Extraditions;
Magistrate 14 Koppes Conway Plaza West 100% Juvenile Delinquency, less JD cases transferred to Div. 4; 100% Truancy; (less ½ Day County Court Pretrials) District Court 15 Quammen Plaza West 26% Criminal & Extraditions; 100% JD Appeals, Jury Trials, Objections, conflicts & other JD cases transferred from Div.14 District Court 16 Taylor Plaza West 26% Criminal & Extraditions; County Court 17 Meyer Centennial Dedicated DV Court; 100% FED Trials; 20% Civil; 100% DV TPO/PPOs; 100% DV Misdemeanors County Court A County Judges Centennial First Appearance Center, three County Court Judges rotate in this division one week every three weeks County Court B Nichols Centennial 33.3% Non-DV TPO/PPOs; 20% Civil; 33.3% Non-DV Misdemeanors; 33.3% Misdemeanor Traffic Magistrate C Gonzales Centennial 100% County Court FED s, First Appearance Center, final hearings on traffic infractions, 20% civil, 100% civil contempt Magistrate D Davis Centennial 100% Child Support & CSEU Paternity DV Domestic Violence; FED - Forcible Entry and Detainer; JV Juvenile Non-Criminal; PPO - Permanent Protection Orders; TPO - Temporary Protection Orders. In addition to judges and magistrates, there are 162.7 fulltime equivalent positions designated as support personnel. These positions include court judicial assistants, court clerks, law clerks, court reporters, interpreters, collections investigators, probation officers and support staff. There are 95.75 FTE assigned to the courts in addition to 69.95 FTE in probation.
Just Business: Breaking Down the World of Business Immigration 19 th Judicial District Bench-Bar Committee & The Weld County Bar Association Inc. 7 th Annual Nuts & Bolts CLE December 10, 2010 David A. Harston Elkind Alterman Harston PC
What We ll Cover NIV: Nonimmigrant (Temporary) Visas for Work Including E, H, L, O, P, Q, R, and TN IV: Immigrant (Permanent) Visas through Employment Including Labor Certification, National Interest Waivers, and EB-1 Workers Qualifying for Relief through Employment When a Business Case Becomes an Asylum Case & Vice Versa
E-1 Treaty Traders and E-2 Treaty Investor Must be national of treaty country E-1: Substantial Int l trade E-2: Substantial Investment Investors, executives, supervisors, or essential personnel Admitted for two-years + two-year extensions Dependents: spouse and/or minor children E-3 for Australians (see H-1Bs)
H-1B Specialty Occupations Jobs requiring at least a bachelor s degree in a specific specialty Individual holds degree or equivalent in that specialty Wage requirements Capped at 65,000/year Three-year period + three-year extension H-4: Dependents (spouse and/or minor children) H-1B1 for Chile/Singapore
H-2A and H-2B Nonimmigrant Visas H-2A Agricultural Workers H-2B for Seasonal, One-Time Occurrence, Peak load Need, or Intermittent Need Requires labor certification Wage requirements Housing for H-2As Cap of 66,000/year for H-2Bs
L-1 Intra-company Transfers Qualifying Corporate Relationship One-year Employment Abroad Required L-1A: Executives or Managers L-1B: Specialized Knowledge L-1As (7 years); L-1Bs (5 years) Special Rules for New Offices L-2s for spouses and/or minor children
O-1 Extraordinary Ability O-1A: Sustained national or int l acclaim in the sciences, arts, education, business, or athletics O-1B: Film & Television Arts = distinction Major prize OR three of suggested criteria Typically granted for 3 years, extensions granted in one-year increments
P/Q/R Nonimmigrants P-1A: Internationally recognized Athletes P-1B: Internationally recognized Group Entertainers Q: Int l Cultural Exchange Programs R-1: Ministers & Religious Workers
Trade NAFTA (TN) Nonimmigrants Canadians and Mexicans List of occupations with required credentials in appendix to the treaty E.g. Engineers, Accountants, most scientists Admitted up three years Direct border application Renewable indefinitely (sort of)
NIV Hypothetical #1 Canadian Biochemist with PhD from MIT Multiple articles in leading journals; work cited in other leading journals Has worked in Canada as researcher for Canadian biotech firm for two years in management role Coming to work in research and management role in U.S. subsidiary
NIV Hypothetical #2 Mexican national with 4 years of experience cooking authentic Mexican cuisine No prior immigration violations in U.S. Offer of FT/regular position from U.S. employer paying prevailing wages for the cook position U.S. employer has advertised in good faith for six months and cannot find qualified, willing, and available workers
Employment-Based Preferences First: Priority Workers: 28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences. Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability: 28.6% of the worldwide employmentbased preference level, plus any numbers not required by first preference. Third: Skilled Workers, Professionals, & Other Workers: 28.6% of the worldwide level, plus any numbers not required by first & second preferences, not more than 10,000 of which to "Other Workers". Fourth: Certain Special Immigrants: 7.1% of the worldwide level. Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or highunemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395. Total of 140,000 EB immigrants; no more than 7% per country
December 2010 USDOS Visa Bulletin
Permanent Labor Certification Used for most EB-2 and EB-3 cases Filed by U.S. employers on Form ETA 9089 with USDOL U.S. employer must test the labor market to determine if there are any qualified, willing, and able U.S. workers Wage requirements/ability to pay Must document recruitment efforts Special rules for college/university teachers
Exceptional Ability and Schedule A No individual certification required by USDOL Schedule A Blanket determinations: Physical Therapists and Nurses Persons of Exceptional Ability in sciences or arts and university teachers Widespread acclaim & Int l recognition USCIS and USDOL criteria
National Interest Waivers Only available to EB-2 workers Area of substantial intrinsic merit Benefit will be national in scope National interest adversely affected if labor certification were required Does not require U.S. employer See Matter of New York State Department of Transportation, 22 I&N Dec. 215 (Acting Assoc. Comm. 1998).
EB-1: Extraordinary Ability Sciences, arts, education, business, or athletics Sustained or Int l acclaim Major Int l Award or three from list of 10 criteria including published materials, original work of major significance, judge of the work of others No U.S. employer required
EB-1: Outstanding Professors & Researchers Recognized Internationally + 3 years teaching or research in field Tenure/tenure track position or comparable position at university to conduct research or comparable position at private employer to conduct research (must show documented accomplishments) At least two criteria from list of 6 including prizes, memberships, published materials
EB-1: Multinational Executives & Managers Qualifying Corporate Relationship One-year Employment Abroad as executive or manager required Job offer by U.S. organization No first line supervisors unless employees supervised are professional workers
IV Hypothetical #1 Russian nuclear scientist with PhD on H-1B for major U.S. research company with offices abroad Cutting-edge research on detecting nuclear radiation International publications and presentations Articles written about her & work cited by others Managed a team of scientists at subsidiary in Russia
IV Hypothetical #2 National of the Philippines with five years of experience in the dairy industry Position requires high school degree plus six months experience working in dairy industry Driver s license Year-round/FT position Employer paying prevailing wages
Qualifying for Relief Through Employment Immigrant Visa (IV) waivers limited in EB cases. If no qualifying relative, limited largely to status violators. Waivers filed with USCIS or Judge. Help from 245(i) & 245(k) Nonimmigrant Visa (NIV) waivers under INA 212(d)(3)(A). Broad waiver. NIV waivers filed with USCBP, USCIS, or USDOS
Workers Fleeing or Who Fear Persecution Pursue concurrent legal strategies Start early and move quickly Asylum applicants with work authorization who have tricky issues De Facto Asylum Case: EB case but no fit into asylum box or tricky asylum issues Velarde Motions to the Board of Immigration Appeals
Questions? David A. Harston Elkind Alterman Harston PC Blake Street Terrace 1860 Blake Street, Suite 420 Denver, Colorado 80202-5964 Phone: (303) 736-6650 Fax: (303) 736-6655 david.harston@eamimmigration.com www.eahimmigration.com
Orten Cavanagh Richmond & Holmes LLC Attorneys at Law AMENDING RECORDED COVENANTS/ HOA UPDATE Prepared for The 19 th Judicial District Bench-Bar Committee and The Weld County Bar Association, Inc.'s 7th Annual Nuts & Bolts CLE Orten Cavanagh Richmond & Holmes, LLC Community Association Attorneys Denver Phone 720.221.9780 Fax 720.221.9781 Colorado Springs Phone 719.457.8420 Fax 719.457.84199781 Toll Free 888-841-5149 Email: info@ocrhlaw.com Web: www.ocrhlaw.com
Orten Cavanagh Richmond & Holmes LLC Attorneys at Law AMENDING RECORDED COVENANTS Many common interest communities have not kept their declaration or covenants current with changes in the law, changes in the community or changes in governance and operations of the association. Additionally, many communities have not formalized amendments owners have approved to the governing documents. Out-of-date documents, or amendments approved but not reflected in written documents may create risk for the community. Document Risk Analysis The Declaration, Articles ofincorporation and Bylaws (the "governing documents") create the community and define the governance and operations of the association. Yet, these documents may be years, if not decades, old. Associations should consider having these documents reviewed and analyzed for outdated, inconsistent provisions, changes in state and federal law, changes in how associations operate and to reflect all prior amendments. This type of review can be performed by the association's attorneys and presented to the board or a committee. This review will reveal risks associated with the governing documents. The board can then determine if steps should be taken, and when, to seek to eliminate risks. Should Amendments Be Sought? Use this checklist to make a quick determination of whether an association should consider seeking to amend the declaration. Yes o o o o o No o o o o o The declaration contains declarant or developer rights which have expired, never expire, or provided for two classes of voting. The declaration conflicts with state law or federal law. The declaration contains use restrictions which are impractical or no longer desirable or have been overridden by state law. Covenants in the declaration are frequently violated or are not enforced. The declaration contains covenants which the board believes should not be enforced, because they are no longer appropriate for the community. 1
Orten Cavanagh Richmond & Holmes LLC Attorneys at Law o 0 The association can only raise assessments to a certain level because of an "assessment cap" based upon a percentage of the previous year's assessments or the consumer price index. o 0 The association has consulted with legal counsel several times for assistance in interpreting the declaration. o 0 Maintenance responsibilities are not clearly allocated to the association or the owners. o o o o o o Insurance responsibilities are not clearly defined or are too limiting. The declaration is not in compliance with FHA requirements. The board and members are overwhelmed and confused by the content of the declaration. Must an association seek to amend the declaration? No. But there are compelling reasons to do so, as follows: Members are entitled to rely on the governing documents and have expectations that the Association and the Board will follow these documents. Failure to enforce covenants (even if outdated) may, in some instances, be a breach of the Association' s and/or the Directors' duties. Directors may be misled as to their duties and responsibilities by outdated documents. Reserved, but expired developer rights add no value or guidance to Owners and the Board or the Association. Problems that may arise later can be solved now proactively, instead of reactively. Inability for purchases to obtain financing. Who is involved in the drafting process? The association' s attorney, the Board or a committee, and sometimes the manager typically have the most active involvement in drafting. It is essential that members of the Community be involved in the drafting process from the beginning. Often preliminary drafts can be reviewed 2
Orten Cavanagh Richmond & Holmes LLC Attorneys at Law by the Board or by a committee and management. Once the Board or committee is satisfied with the initial drafts, additional member input should be sought. Member input can be sought at informational and discussion meetings, or by notifying members that drafts are available for comment. Block meetings or informational meetings are frequently used in successful amendments. If members feel informed, involved and listened to during the drafting process, the association will have a much easier time getting approval when the amendments are ready to be finalized. What is the approval requirement to amend a declaration? The declaration itself generally contains a provision establishing the approval requirement to amend the declaration. A specified percentage of the Owners (or of Owners holding a specified interest in the Common Elements) will be required, but there may also be first mortgagee and/or declarant approval rights to be considered. Colorado Common Interest Ownership Act's (CCIOA's) amendment provisions Owner Approval (CR.S. Section 38-33.3-217(l)(a)(l) and 38-33.3-217(4)) A declaration can be amended only by the affilmative vote or agreement of more than 50% of the votes. A declaration provision specifying an owner approval requirement greater than 67% is void as contrary to public policy. If all units are restricted to nomesidential use, the declaration may specify a smaller percentage than a simple majority for an amendment. Limitation: Unless the association has no residential units, an amendment must have the vote or agreement of owners to which at least 67% of the votes in the association are allocated to: Create or increase special declarant rights Increase the number of units Change the boundaries of any unit Change the allocated interests of a unit Change the use to which any unit is restricted First Mortgagee Approval (CR.S. Section 38 33.3-217(b)) If the declaration requires first mortgagee approval, but does not set forth a procedure for registration or notification of first mortgagees, the association may obtain first mortgagee approval through the following procedure: Send written notice and a copy of the proposed amendments to each first mortgagee at its most recent address as shown on the recorded deed of trust or recorded assignment. 3
Orten Cavanagh Richmond & Holmes LLC Attorneys at Law Cause the dated notice and information on how to obtain a copy of the proposed amendment to be printed in full at least twice on separate occasions at least one week apart in a newspaper of general circulation in the county where the community is located. If a first mortgagee does not deliver a negative response to the association with 60 days after the date of the notice, the first mortgagee shall be deemed to have approved the proposed amendment. Court Petition/or Approval (CR.S. Section 38-33.3-217(7)) In some instances, associations may have difficulty amending a declaration because owners are apathetic and do not vote, rather than because members oppose the amended declaration. In such instances, the court petition procedure, outlined below, is a good option. Colorado law requires District Courts to approve proposed declaration amendments which meet the following criteria: (a) (b) (c) (d) Required Prior Notices. All owners must receive at least two notices (by any means consistent with the Colorado Revised Nonprofit Corporation Act) of the proposed declaration amendment. Member Meeting Requirement. The Association must hold at least one member meeting (called and held in accordance with the Association's governing documents) to discuss the proposed declaration amendment. Minimum Owner Vote or Approval At least half of the owners required under the existing declaration must vote for the proposed declaration amendment. Petition May Be Filed. A petition must be prepared and filed with the Court requesting that the Court approve the proposed declaration amendment. The petition is required to include: A summary of the procedures and requirements for amending the declaration that are set forth in the existing declaration; The proposed amendment to the declaration, the effect of and reason for the proposed amendment, including a statement of the circumstances that make the amendment necessary or advisable; The results of any vote taken with respect to the proposed amendment; 4
Orten Cavanagh Richmond & Holmes LLC Attorneys at Law Any other matters that the association believes will be useful to the Court in deciding whether to grant the petition; and As exhibits - copies ofthe declaration as originally recorded and any recorded amendments to the declaration; the text of the proposed amendment; copies of any notices sent pursuant to the requirements of the statute; and any other documents that the association believes will be useful to the Court in deciding whether to grant the petition. (e) Hearing on the Petition. A hearing is scheduled on the petition within 45 to 60 days after filing the petition. (f) (g) Notice of the Hearing. A notice of the petition and notice ofthe hearing must be sent to owners, first mortgagees and the declarant within 10 days after the hearing date is set. Court Approval. The Court is required to grant the petition unless 33% of the owners, 33% of the lenders, or the declarant, object to the amendment. HOA UPDATE - LEGISLATION ADOPTED IN 2010 HOA Information and Resource Center - HBI0-1278 This bill sets up a new state office as an "HOA Information and Resource Center" for owners, associations and declarants in Colorado common interest communities within the Division of Real Estate. The bill also requires all owner associations that are organized under Section 38-33.3-301 of the Colorado Common Interest Ownership Act to register, pay a registration fee and report, annually to the State. The legislation becomes effective January 1,2011. The Division of Real Estate is to set up the required infrastructure in 2010, before the bill becomes effective January 1,2011, including Association annual registration process, rules and employment of the required personnel (one HOA Information Officer and up to one FTE assistant). 5
Orten Cavanagh Richmond & Holmes LLC Attorneys at Law The HOA Information Officer and Office has 5 primary responsibilities: to act as a clearinghouse for information concerning the basic rights and duties of owners, declarants and owners' associations in common interest communities to track inquiries and complaints to establish an annual registration and report process for all owner associations organized under Section 38-33.3-301 of the Colorado Common Interest Ownership Act to register and provide basic information to the Division of Real Estate to collect annual registration fees from owner associations (those required to register) to report annually to the Director of the Division of Real Estate regarding the number and types of inquiries and complaints received The annual report is to include the following: the name of the association the name of the association's designated agent or management company, if any a valid physical address and telephone number for both the association and the designated agent or management company, if any the name of the common interest community the initial date of recording of the declaration the reception number or book and page for the main document that constitutes the declaration Additionally, the State may require other information as specified by the Director of the Division of Real Estate (number of properties in the community, etc.). The bill requires the 'HOA Information and Resource Officer' to report, annually, to the Director of the Division of Real Estate. Currently, the bill specifies that this report must be on the number and type of inquiries and complaints received from owners, associations and declarants. The legislation repeals, by its own terms, in 2020, unless extended. 6
Orten Cavanagh Richmond & Holmes LLC Attorneys at Law For the latest information, please visit the Division of Real Estate website at www.dora.state.co.us/real-estate/licensing/subdivisonlhoa.fag.htm. Enforcement of the New Law The HOA Information Officer has no enforcement authority under the documents for a community or under state law. The HOA Information Office will not intervene in or resolve complaints received by that office. If an association fails to register, it may not enforce a lien for assessments and may not employ any other enforcement mechanisms to enforce covenants until the association is validly registered. A lien for assessment filed when the association was validly registered or before registration was required is not extinguished by a lapse in the association's registration, but any pending enforcement proceedings related to the lien will be suspended and time limits tolled until the association is again validly registered. Community Solar Gardens Utility Electric Standard - HBIO-1342. Existing law directs the Colorado Public Utilities Commission (PUC) to adopt rules implementing the renewable energy portfolio Peniston, Pommer, Primavera, Solano, Tyler standards (RPS) for electric utilities, under which increasing amounts of electricity must be generated from renewable sources. The current rules provide for standard rebates for the cost of installation and renewable energy credits (RECs) to promote customer-sited solar generation facilities (10 or more customers to one shared location, called a "community solar garden"). The bill directs the PUC to adopt new rules under which standard offers can apply to solar generation facilities that are beneficially owned. This will help electric utility customers to participate in solar generation even though solar facilities on their own properties may not be feasible due to cost, the physical characteristics of their sites, their status as renters, or other factors. Section 1 of the bill declares that it is in the public interest to allow renters and lowincome utility customers to own interests in solar generation facilities, to make interests in solar generation facilities portable and transferable, and to leverage Colorado's solar generating capacity through economies of scale. 7
Orten Cavanagh Richmond & Holmes LLC Attorneys at Law Professional Construction Insurance - HBIO-1394 In a recent Colorado Court of Appeals case, General Security Indemnity Company of Arizona v. Mountain States Mutual Casualty Company, 205 P.3d 529 (Colo. App. 2009), the court excluded claims for certain construction defects claims under a contractor's professional liability insurance policy. This bill imposes the following rules of insurance policy or contract construction to guide a court in such cases: Courts should presume that: o compliance with a construction professional's objective, reasonable expectations is intended o the entire policy is to be effective and read as a whole o a just and reasonable result is intended o ambiguity in a policy is to be construed in favor of coverage o a result that renders a part of coverage illusory is not intended o the work of a construction professional that results in property damage is an accident unless the property damage is intended and expected by the insured. When weighing conflicting provisions, the court should construe the contract to favor coverage. The insurer bears the burden of proving that a policy provision limits or bars coverage. The bill prohibits a professional liability insurer from excluding or limiting coverage of acts arising before the policy was issued unless the insured knows of defects that have likelihood to subject the insurer to damages and fails to disclose this to the insurer. 00095556.RTF /1 8
Seventh Annual 19 th Judicial District Bench-Bar Committee Nuts & Bolts CLE Presents CRIMINAL LAW UPDATE December 10, 2010 Presented by: Honorable Thomas J. Quammen, District Court Judge Shannon Lyons, Esq.
Acknowledgments A portion of the credit for the case law portion of this outline goes to Forrest W. Lewis and Jefferson County Chief Deputy District Attorney Mark M. Randall (now Jefferson County Court Judge Mark M. Randall) who graciously gave us permission to incorporate their work into this outline. Grateful acknowledgment is given to the staff of the Attorney General s Office, the Colorado District Attorneys Council, and Dan Rubenstein and Chris Nerbonne from the Mesa County District Attorney s Office for assistance in completing the case law update for this outline, and to Melissa Bodkin of Collins, Liu & Lyons, LLP for her technical assistance in finalizing this outline. Table of Contents I. SEARCH AND SEIZURE - - - - - - - - 10 A. Standing - - - - - - - - - 10 B. Warrantless Searches - - - - - - - 10 1. Exigent Circumstances - - - - - - 10 2. Consent Searches Scope of Consent - - - - 11 3. Vehicle Searches/Incident to Arrest/Gant - - - - 11 4. Vehicle Searches Impoundment / Seiaure - - - 12 5. Search of Probationers - - - - - - 13 6. Statutory Suppression - - - - - - 13 C. Search Warrants - - - - - - - - 14 1. Sufficiency of Affidavits - - - - - - 14 2. Good Faith - - - - - - - - 15 3. Staleness - - - - - - - - 16 II. STATEMENTS - - - - - - - - - 16 A. Sufficiency of the Advisement - - - - - - 16 B. Custody Miranda - - - - - - - - 17 C. Custody Miranda Warning and Waivers - - - - 17 D. Re-initiation of Interrogation by Law Enforcement - - - 18 E. Miranda Implied Waiver - - - - - - - 19 III. CHARGING AND PRE-TRIAL PROCEDURE - - - - 20 A. Informations - - - - - - - - 20 B. Guilty Pleas Advisements - - - - - - 21 C. Conditional Pleas - - - - - - - - 21 D. Jurisdictional Defenses Double Jeopardy Multiple Prosecutions - 21 E. Jurisdictional Defenses Double Jeopardy Multiple Punishments - 22 Page 2 of 57
F. Jurisdictional Defenses Detainers UMDDA - - - - 23 G. Discovery v. Confidentiality - - - - - - 23 H. Discovery v. Confidentiality Restitution - - - - 24 I. Subpoenas - - - - - - - - - 24 J. Motions Hearings - - - - - - - - 24 K. Preliminary Hearing - - - - - - - 25 L. Constitutional Speedy Trial - - - - - - 25 M. Change of Venue - - - - - - - - 26 IV. COUNSEL - - - - - - - - - 27 A. Disqualification of District Attorney - - - - - 27 B. Defendant s Right to Counsel or Self-Representation - - - 27 C. Conflicts of Interest / Counsel of Choice - - - - - 27 D. Ineffective Assistance of Counsel - - - - - - 28 E. When Right to Counsel Applies Waiver - - - - - 29 F. When Right to Counsel Applies Stages - - - - - 30 V. MISCONDUCT - - - - - - - - - 31 A. Judicial - - - - - - - - - 31 B. Prosecutorial - - - - - - - - 31 VI. TRIAL - - - - - - - - - - 33 A. Specific Crimes - - - - - - - - 33 1. Vehicular Homicide - - - - - - 33 a. Foreseeability - - - - - - 33 b. Intervening cause - - - - - - 33 2. Extreme Indifference Murder - - - - - 34 3. Sexual Offenses Against Children - - - - - 34 4. Theft by Receiving - - - - - - - 34 5. Weapons Violations - - - - - - 35 6. Burglary - - - - - - - - 35 B. Right to a Jury and Waiver of Right - - - - - 35 C. Public Access - - - - - - - - 36 D. Jury Selection - - - - - - - - 37 E. Witnesses Competency - - - - - - - 38 F. Child Witnesses - - - - - - - - 38 G. Experts - - - - - - - - - 38 H. Privilege Against Self Incriminations Witnesses - - -- 38 I. Evidence - - - - - - - - - 39 1. Relevancy CRE 403 - - - - - - 39 2. CRE 404(b)/Res Gestae - - - - - - 39 3. Privileges - - - - - - - - 39 J. Hearsay General - - - - - - - - 40 K. Defendant s Rights to be Present and to Testify - - - - 40 L. Curtis Advisement and Waiver - - - - - - 40 M. Jury Instructions - - - - - - - - 41 Page 3 of 57
N. Jury Access Evidence - - - - - - - 42 O. Unanimity - - - - - - - - - 42 P. Verdicts Inconsistent Verdicts - - - - - - 42 Q. Sufficiency of Evidence for Conviction - - - - - 43 VII. SENTENCING - - - - - - - - - 43 A. Factual Basis Consecutive Sentences - - - - - 43 B. Probation Revocations - - - - - - - 44 C. Sentence Reduction Crime of Violence - - - - - 44 D. Merger and Multiplicity - - - - - - - 44 E. Restitution Surcharges - - - - - - - 45 F. SVP Determination - - - - - - - 47 G. Probation Two Prior Felony Rule - - - - - 47 H. Aggravation - - - - - - - - 48 I. Consecutive and Concurrent Terms - - - - - 48 J. Habitual Criminal - - - - - - - - 48 1. Proportionality Review - - - - - - 48 2. Sufficiency of Evidence - - - - - - 49 K. Mandatory Sentences - - - - - - - 49 L. Equal Protection - - - - - - - - 49 M. Pre-Sentence Confinement Credit - - - - - - 50 VII. POST CONVICTION - - - - - - - - 50 LEGISLATIVE UPDATE- CRIMINAL LAW - - - - - - 52 Page 4 of 57
Table of Cases Berghuis v. Thompkins, 559 U.S., 130 S.Ct. 2250 (2010) - - - 19 Brown v. People, 239 P.3d 764 (Colo. Sept. 20, 2010) - - - 42 Clark v. People, 221 P.3d 447 (Colo. App. Nov. 12, 2009) - - - 50 Crumb, Jr. v. People, 230 P.3d 726 (Colo. 2010) - - - - 31 DeBella v. People, 233 P.3d 664 (Colo. 2010) - - - - 42 Effland v. People, P.3d 2010 WL 3733539 (Colo. Sept. 27, 2010) - 19 Florida v. Powell, 559 U.S., 130 S.Ct. 1195 (2010) - - - 16 In re People v. Day, 230 P.3d 1194 (Colo. 2010) - - - - 34 In re People v. Nichelson 219 P.3d 1064 (Colo. Nov. 9, 2009) - - 25 Maryland v. Shatzer, 559 U.S., 130 S.Ct. 1213 (2010) - - - 18 Page Padilla v. Kentucky, 559 U.S., 130 S.Ct. 1473 (2010) - - - 21, 28 People In the Interest of A.D.T., 232 P.3d 313 (Colo. App. 2010) - - 23 People in the Interest of D. W., 232 P.3d 182 (Colo. App. 2009) cert denied, 2010 WL 2488971 (Colo. 2010) - - - - - 45 People ex rel. KM, 232 P.3d 310 (Colo. App. 2010) - - - - 24, 46 People v. Aguilar-Ramos, 224 P.3d 402 (Colo. App. Oct. 15, 2009) - - 22 People v. Alley, 232 P.3d 272 (Colo. App. Oct. 15, 2010) cert. denied, 2010 WL 2582266 (Colo. 2010) - - - - - 38 People v. Bergerud, 223 P.3d 272 (Colo. Jan. 11, 2010) - - - 30 People v. Blackwell, P.3d, 2010 WL 2305904 (Colo. App. June 10, 2010) 32, 38 People v. Bowerman, P.3d, 2010 WL 3431879 (Colo. App. Sept. 2, 2010) 46 People v. Brante, 232 P.3d 204 (Colo. App. 2009) cert. denied, 2010 WL 2489372 (Colo. 2010) - - - - - 27 People v. Broder, 222 P.3d 331 (Colo. Jan. 11, 2010) - - - 29 Page 5 of 57
People v. Brooks, Jr., P.3d, 2010 WL 1915087 (Colo. App. May 13, 2010) 46 People v. Brosh, P.3d, 2010 WL 2105937 (Colo. App. May 27, 2010) 47 People v. Brown, P.3d, 2010 WL 1491643 (Colo. App. April 15, 2010) 10, 28, 29 People v. Buckner, 228 P.3d 245 (Colo. App. 2009) cert. denied, 2010 WL 1644914 (Colo. 2010) - - - - - 40 People v. Buerge, _ P.3d _, 2009 WL 3764078 (Colo. App. Nov. 12, 2009) cert. denied, 2010 WL 2991478 (Colo. 2010) - - - 47 People v. Butler, P.3d, 2010 WL 2853750 (Colo. App. July 22, 2010) - 16 People v. Chamberlain, 229 P.3d 1054 (Colo. May 10, 2010) - - 12 People v. Chavez, P.3d, 2010 WL 4400311 (Colo. Nov 8, 2010) - 10 People v. Collins, _ P.3d _, 2010 WL 547623 (Colo. App. Feb. 18, 2010) - 32 People v. Crawford, 230 P.3d 1232 (Colo. App. 2009) cert. denied, 2010 WL 1843043 (Colo. 2010) - - - - - 34 People v. Crippen, 223 P.3d 114 (Colo. Feb. 1, 2010) - - - 16 People v. Curren, 228 P.3d 253 (Colo. App. 2009) cert. denied, 2010 WL 1436207 (Colo. 2010) - - - - - 28 People v. Davis, P.3d, 2010 WL 2105878 (Colo. App. May 27, 2010)- 31, 41 People v. Drew, P.3d, 2010 WL 1915047 (Colo. App. May 13, 2010) - 51 People v. Emert, 240 P.3d 514, (Colo. App. June 10, 2010) - - - 40 People v. Ferguson, 227 P.3d 510 (Colo. March 22, 2010) - - - 18 People v. Gallegos, P.3d, 2010 WL 725448 (Colo. App. March 4, 2010) 43 People v. Gallegos, P.3d, 2010 WL 2960853 (Colo. App. 2009) cert., granted, 2010 WL 3213060 (Colo. 2010) - - - 47 People v. Garcia, P.3d, 2010 WL 3914741 (Colo. App. Sept. 30, 2010) 45 People v. Gardner, P.3d, 2010 WL 726040 (Colo. App. March 4, 2010) 50 People v. Gladney, P.3d, 2010 WL 1915048 (Colo. App. May 13, 2010) 21, 39 People v. Glaser, P.3d, 2010 WL 185447 (Colo. App. Jan, 21, 2010) - 26 People v. Gess, P.3d, 2010 WL 1710737 (Colo. App. April 29, 2010) - 23 Page 6 of 57
People v. Gomez-Garcia, 224 P.3d 1019 (Colo. App. 2009) cert. denied, 2010 WL 597940 (Colo. 2010) - - - - 25 People v. Griffiths, P.3d, 2010 WL 2305879 (Colo. App. June 10, 2010) 45 People v. Gutierrez, 222 P.3d 925 (Colo. Dec. 14, 2009) - - - 15 People v. Harland, P.3d, 2010 WL 2681271 (Colo. App. July 8, 2010) 39 People v. Hoffman, P.3d, 2010 WL 1491645 (Colo. App. 2010) - 14, 16, 21 People v. Laeke, P.3d, 2010 WL 4069898 (Colo. App. Nov. 25, 2009) cert. granted, 2010 WL 3529275 (Colo. 2010) - - - 35 People v. Loveall, 231 P.3d 408, (Colo. May 17, 2010) - - - 44 People v. Maclaren, P.3d, 2010 WL 3432236 (Colo. App. Sept. 2, 2010) 13 People v. Maestas, 224 P.3d 405 (Colo. App. 2009) cert. denied, 2010 WL 530280 (Colo. 2010) - - - - - 43 People v. Martin, 222 P.3d 331 (Colo. Jan 19, 2010)- - - - 19 People v. McCarty, 229 P.3d 1041 (Colo. 2010) - - - - 11 People v. Medina, P.3d, 2010 WL 3035203 (Colo. App. Aug. 5, 2010) 32, 41 People v. Minor, 222 P.3d 952 (Colo. Feb.1, 2010) - - - - 11 People v. Montez, P.3d, 2010 WL 961652 (Colo. App. March 18, 2010) 35 People v. Montoya, P.3d, 2010 WL 726037 (Colo. App. March 4, 2010) 36 People v. Moore, P.3d, 2010 WL 2105873 (Colo. App. May 27, 2010) 30, 44 People v. Mumford, P.3d, 2010 WL 961644 (Colo. App. March 18, 2010) 17 People v. Nance, 221 P.3d 428, (Colo. App. 2009) - - - - 47 People v. Neuhaus, 240 P.3d 391 (Colo. App. Nov. 25, 2009) cert. granted in part, 2010 WL 3389325 (Colo. 2010) - - 21 People v. Nevarez-Zambrano, 222 P.3d 329 (Colo. Jan. 11, 2010) - - 26 People v. Novotny, P.3d, 2010 WL 961657 (Colo. App. March 18, 2010) 27 People v. Null, 233 P.3d 670 (Colo. 2010) - - - - - 14, 17 People v. O Hara III, 240 P.3d 283 (Colo. App. May 13, 2010) - - 15 Page 7 of 57
People v. O'Neal, 228 P.3d 211 (Colo. App. 2009) cert. denied, 2010 WL 1436208 (Colo. 2010) - - - - - 35 People v. O'Shaughnessy, P.3d, 2010 WL 1491646 (Colo. App. April 15, 2010) - - - - - - 37, 48 People v. Padilla-Lopez, P.3d, 2010 WL 2853753 (Colo. App. July 22, 2010) - - - - - - 46 People v. Pena, P.3d, 2009 WL 2961294 (Colo. App. 2009) cert. denied, 2010 WL 3623637 (Colo. 2010) - - - 25 People v. Perez, 238 P.3d 665 (Colo. Sept 13, 2010) - - - - 27 People v. Price, 240 P.3d 557 (Colo. App. June 24, 2010) - - - 40 People v. Ragusa, 220 P.3d 1002 (Colo. App. 2009) - - - - 27 People v. Reeves, P.3d, 2010 WL 2681263 (Colo. App. July 8, 2010) - 43 People v. Reynolds, P.3d, 2010 WL 961645 (Colo. March 18, 2010) - 33, 34 People v. Rivera, P.3d, 2010WL961648 (Colo. App. March 18, 2010) - 23, 45 People v. Samuels, 228 P.3d 229 (Colo. App. 2009) cert. denied 2010 WL 1267362 (Colo. 2010) - - - - 13, 27 People v. Sanchez, P.3d, 2010 WL 2521736 (Colo. App. June 24, 2010) 41 People v. Schreiber, 226 P.3d 1221 (Colo. App. Oct. 15, 2009) cert. denied, 2010 WL 706051 (Colo. 2010) - - - - 48 People v. Scott, 227 P.3d 894 (Colo. 2010) - - - - - 14 People v. Smith, P.3d, 2010 WL 3431877 (Colo. App. Sept. 2, 2010) - 50 People v. Spykstra, 234 P.3d 662 (Colo. 2010) - - - - 24 People v. Strock, P.3d, 2010 WL 3259736 (Colo. App. Aug. 19, 2010) 29, 32, 48, 49 People v. Taylor, 230 P.3d 1227 (Colo. App. Nov. 12, 2009) - - 41 People v. Thornton P.3d, 2010 WL 4361373 (Colo. App. Sept. 30, 2010) 40 People v. Vickery, 229 P.3d 278 (Colo. 2010) - - - - 17, 29 People v. Vigil, P.3d, 2010 WL 2105871 (Colo. App. May 27, 2010) - 22, 42, 44 People v. Warner, P.3d, 2010 WL 3259882 (Colo. App. Aug. 19, 2010) 15 Page 8 of 57
People v. Wilson, P.3d, 2010 WL 2521740 (Colo. App. June 24, 2010) 45 People v. Wittrein, 221 P.3d 1076 (Colo. Dec. 14, 2009) - - - 38, 39 People v. Wylie, P.3d, 2010 WL 3431876 (Colo. App. Sept. 2, 2010)- 42, 49, 50 People v. Zhuk, 239 P.3d 437 (Colo. Sept. 20, 2010) - - - - 50 Perez v. People, 231 P.3d 957 (Colo. May 10, 2010)- - - - 10, 11 Pineda v. People, 230 P.3d 1181 (Colo. May 10, 2010)- - - - 12 Presley v. Georgia, 559 U.S., 130 S.Ct. 721 (Jan. 19, 2010) - - 37 Wend v. People, 235 P.3d 1089 (Colo. 2010) - - - - - 31 Page 9 of 57
I. SEARCH AND SEIZURE A. STANDING People v. Brown, P.3d, 2010 WL 1491643 (Colo. App. April 15, 2010) The defendant had no reasonable expectation of privacy in his brother's trailer home, where: As a standard parole condition, the defendant's brother had consented to parole officers' searching his residence and any premises he controlled. The defendant knew that (1) his brother was on parole; (2) the residence could be searched at any time; (3) the brother was required to have permission to live with others; and (4) the brother did not have permission for defendant to live there. The defendant was himself a fugitive from justice who had absconded after revocation of his probation. Perez v. People, 231 P.3d 957 (Colo. 2010) Police arrested Defendant who had been driving a car. The arrest was for an outstanding warrant. Defendant was removed from the car, handcuffed and placed in the back of a patrol car. During a search incident to arrest of the passenger compartment of the car, the police recovered drugs from the glove compartment. Defendant lost his suppression hearing, trial and appeal. A couple years later, the U.S. Supreme court decided Arizona v. Gant. The SC holds that because Defendant was secured in a police car and could not access his car, and because there was no reason to believe that evidence of the offense of arrest (the outstanding warrant) was present in the vehicle, there was no justification under Gant to search the car. The good faith exception does not apply, consistent with People v. McCarty. Even where a defendant disclaimed any possessory interest in the glove compartment, his possessory interest in the car prevents the police from entering the car to search the glove compartment. Defendant, although not the owner of the car, had a possessory interest because he had permission to use the car; thus, he had standing. Due to Defendant s presence at the search, the resulting confession is inadmissible. B. WARRANTLESS SEARCHES 1. EXIGENT CIRCUMSTANCES People v. Chavez, 240 P.3d 448 (Colo. Feb. 18, 2010) In domestic violence cases, the distinction between the doctrines of exigent circumstances and the emergency aid exception collapse because the same facts that give rise to the exigency also provide probable cause to suspect a crime. Deference to officers is particularly warranted in domestic disputes because the signs of danger may be masked by a battered victim's fear or dependence. Here, the warrantless entry into the home shared by defendant, his girlfriend, and her two children was justified by the totality of the circumstances, including that: 1) after running Page 10 of 57
to a neighbor's home, the daughter called 911 to report that her mother and defendant were involved in a physical altercation; 2) the report included that weapons were in the house; 3) police arrived within minutes of the 911 call to find the house dark; 4) police's repeated pounding on the front door met with no response; and 5) an officer went to the back of the house and saw the door ajar. 2. CONSENT SEARCHES- SCOPE OF CONSENT People v. Minor, 222 P.3d 952 (Colo. 2010) General consent to search a vehicle extends to all objectively reasonable places in which the implied object of the search may be found. This includes closed containers so long as no forcible destruction of property is necessary to access any contents. The driver in control of a vehicle has the power to consent to a search of the vehicle even if he is not the registered owner and the registered owner is present at the time. People v. Collins, P.3d, 2010 WL 547623 (Colo. App. 2010) The voluntariness of a consent to search is a question of fact to be determined by the trial court. The reviewing court must defer to the trial court's findings of fact unless those findings are clearly erroneous or find no support in the record. Here: Under the totality of the circumstances, the defendant's consent to provide a DNA sample was not rendered involuntary merely because the authorities did not expressly inform him that his DNA sample might be used to implicate him in other crimes 3. VEHICLE SEARCHES/INCIDENT TO ARREST/GANT Perez v. People, 231 P.3d 957 (Colo. 2010) [see also People v. McCarty, 229 P.3d 1041, (Colo. 2010); People v. Chamberlain, 229 P.3d 1054, (Colo. 2010)] There are two scenarios in which police officers may search a vehicle's passenger compartment after arresting an occupant: an officer may search the vehicle if the arrested occupant is unsecured and can access the interior of the vehicle; and an officer may conduct a search if it is reasonable to believe (not the mere possibility as in McCarty and Chamberlain) that evidence of the offense of arrest might be found in the vehicle. Such a belief exists when there is a degree of articulable suspicion commensurate with that deemed sufficient for limited intrusions like investigatory stops. Here, police did not have a reasonable belief that evidence of the offense of arrest might be found in the vehicle, as defendant was arrested on an outstanding warrant that had no connection to the vehicle, and the charge underlying the warrant was not named in the record. Although the search was lawful under precedent controlling at the time search was conducted, the court did not allow the good faith exception. People v. McCarty, 229 P.3d 1041 (Colo. May 10, 2010) Page 11 of 57
Defendant bought a pot pipe from an import store. Police were surveilling the store and followed Defendant who committed a traffic infraction and was contacted by police. Defendant admitted buying a pot pipe, which had not been used, from the store, and turned it over to police. Police then searched his car (it appears he was not under arrest during the search but was speaking with another officer away from his car), where drugs were found. The trial court ordered suppression of the drugs, but denied suppression of the pipe. The SC affirmed and holds an unused glass pipe found on the arrestee s person was insufficient to provide a reasonable belief that more evidence of possession of drug paraphernalia would be found in the car. The SC finds the officers could have arrested Defendant but that a search incident to arrest would not be justified. The SC also holds that the automobile exception to the warrant requirement did not apply because the officers lacked reasonable suspicion that the vehicle contained evidence of drug paraphernalia. The prosecution argued the good faith exception, and this issue is the real focus of this case. The SC holds the good faith exception does not apply to pre-gant searches. The SC analyzed new constitutional rulings and whether such ruling should be applied retroactively. Gant itself did not address the retroactive application or good-faith exception issues. The SC concludes it should not expand the good-faith exception beyond the limits that have been previously set by the U.S. SC in its case law (see U.S. v. Leon, Massachusetts v. Sheppard, Arizona v. Evans, Hudson v. Michigan, Herring v. U.S., Michigan DeFillipo and Illinois v. Krull). People v. Chamberlain, 229 P.3d 1054 (Colo. May 10, 2010) Defendant was contacted for minor traffic violation. She advised the officer that the address on her license had changed about three weeks earlier. The officer called another officer who had ticketed Defendant two weeks earlier and he learned she had given that officer her old address. She was not living at the old address two weeks earlier, so the present officer arrested Defendant for false reporting to the prior officer. A search incident to her arrest revealed drugs and paraphernalia. The trial court initially denied the suppression motion, then reconsidered after Arizona v. Gant was issued. This case is an interlocutory appeal. The SC holds that officers lacked a reasonable belief to search the car incident to arrest when Defendant was arrested for false reporting her place of residence. There must be some degree of articulable suspicion to merit belief that evidence of the crime on which Defendant was arrested will be found inside the vehicle. Probable cause is not required, but suspicion commensurate with investigatory stops is required. The SC seems to be saying at least reasonable suspicion is required, and maybe a little more, but not probable cause. The SC dances all around reasonable suspicion without committing to this standard because the Gant Court did the same thing. 4. VEHICLE SEARCHES IMPOUND / SEIZURE Pineda v. People, 230 P.3d 1181 (Colo. May 10, 2010) Page 12 of 57
Defendant allegedly sold drugs to an informant. The police followed Defendant, contacted him, and allowed him to leave without arrest or summons. Over the course of a couple weeks, police saw the vehicle with two different registration tags. Officers contacted Defendant in his vehicle for traffic violations. He was arrested and placed in the backseat of the patrol car. Officers determined Defendant s car needed to be taken into custody and towed because it was blocking a lane of traffic on a busy avenue and no one was available to take possession of the car. This was per Aurora Police Department policy. The police conducted an inventory search prior to the tow and followed procedure. Defendant s motion to suppress was denied based on the search incident to arrest exception. He was convicted, lost on appeal, then Arizona v. Gant came out. The SC avoided addressing the Gant search incident to arrest issue because it found that the police conducted a proper inventory search of the vehicle. Good analysis of inventory search law. Therefore, the inventory search exception applies to the warrant requirement and there is no need for further analysis. However, the court reiterates we can no longer rely on pre-gant determinations concerning the search incident to arrest exception. 5. SEARCHES OF PROBATIONERS People v. Samuels, 228 P.3d 229 (Colo. App. 2009) cert. denied, 2010 WL 1267362 (Colo. 2010) The Court of Appeals for the first time addresses the issue of whether Colorado, in the absence of a statute specifically allowing it, authorizes warrantless searches of probationer's homes. The court finds that a probationer has a lesser expectation of privacy such that a probation officer may search a probationer's home without a warrant if the officer has a reasonable suspicion to believe that the probationer violated a condition of his probation and- that evidence of that violation may be found there. 6. STATUTORY SUPPRESSION People v. Maclaren, P.3d, 2010 WL 3432236 (Colo. App. Sept. 2, 2010) Defendant was involved in a traffic accident with another vehicle that resulted in a broken wrist to the driver of the other car. Defendant was charged with vehicular assault and DUI. Defendant exhibited signs of alcohol consumption and admitted drinking to the EMT. The officer followed defendant s ambulance to the hospital, and later requested a hospital phlebotomist to draw two vials of blood from defendant. This request was fulfilled without defendant s consent and, therefore, was involuntary. The trial court found that the officer had PC to arrest and did not violate defendant s Fourth Amendment rights, but there was a violation of the express consent statute and, thus, suppressed the evidence and dismissed the charges. The COA upheld the suppression of evidence, but overruled the dismissal of the case. COA notes that generally suppression is not warranted for statutory violations, unless the statute Page 13 of 57
expressly provides for suppression. However, courts have broad discretion to suppress evidence as a sanction for improper police conduct in implementing the express consent statute. Because there was no effort by the officer to comply with the express consent statute, the trial court was within its discretion to suppress the evidence, but dismissal was not an appropriate sanction. People v. Null, 233 P.3d 670 (Colo. 2010) Where police fail to provide DUI defendant with his chosen implied consent test (blood), the prosecutor must present evidence of extraordinary circumstances justifying that failure or risk suppression of defendant's refusal to take a breath test and, ultimately, dismissal of the DUI charge. C. SEARCH WARRANTS 1. SUFFICIENCY OF AFFIDAVITS People v. Scott, 227 P.3d 894 (Colo. 2010) A search warrant was obtained to search a home for multiple dogs. While in the home evidence of dog fighting was observed, and a second warrant was obtained. The second affidavit did not incorporate the first by reference and the trial court suppressed the second warrant as lacking in probable cause. The appellate court reversed, did an analysis of when the four corners doctrine can be extended, and found where the same judge reviewed and issued the two warrants for the same residence on the same day, both warrants should be read together for the purposes of a probable cause analysis. The court disfavors `hypertechnical' requirements as to form which constrain common sense probable cause determinations People v. Hoffman, P.3d, 2010 WL 1491645 (Colo. App. 2010) A sheriff's deputy received information from an informant that the defendant was dealing quantities of methamphetamine. The informant said that the defendant stored the methamphetamine in a fake rock that he kept both in and out of his home; that he distributed drugs while driving his green Buick at night; had large quantities of cash; and often had 2-3 ounces of methamphetamine which he often carried in his underwear. The informant identified the defendant from a booking photo. This was all included in the search warrant affidavit. The informant's source of knowledge was not in the affidavit. A month later, the deputy conducted surveillance on the defendant's residence. At around 11 p.m., he observed a man arrive, park, leave his car running, go around to the back of the home and return about 5 to 10 minutes later. The deputy stopped the man's vehicle, arrested him, searched him, and found a quantity of methamphetamine and marijuana. More drugs and paraphernalia were located in the car. The man claimed he had been visiting his brother at the home (brother did live there). A second person was also arrested and found in possession of marijuana and paraphernalia, but nothing was provided to show a nexus to the first arrestee or to the defendant. The affidavit also included information that the defendant had a previous conviction for possession of a schedule II controlled substance from four years earlier, and was in a vehicle recently where Page 14 of 57
methamphetamine was found, but he was not charged. The sworn affidavit was insufficient where: (1) the informant did not state that he bought drugs from the defendant, witnessed any sales of drugs by the defendant, orhad been in the defendant's presence during a sale; (2) the informant did not state that he had been inside the defendant's trailer or had witnessed defendant handling large amounts of either methamphetamine or cash; (3) there was no indication that he previously gave reliable information to the police or made a declaration against his penal interest; or (4) police did not corroborate factors that related to the specific information provided by the informant. People v. Warner, P.3d, 2010 WL 3259882 (Colo. App. Aug 19, 2010) At a veracity hearing challenging a search warrant affidavit, the court must first determine whether there are erroneous statements in the affidavit; if so, it must decide, by a preponderance of the evidence, whether the source of the error is intentional falsehood or reckless disregard for the truth on the part of the affiant. If either is the case, the false statements must be stricken from the affidavit. An affidavit is sufficient to establish the existence of a dispute regarding the truth of the allegations in the search warrant affidavit; it is not sufficient in and of itself to resolve that dispute. Even in circumstances where affidavits are otherwise admissible, an affidavit not based on the affiant's personal knowledge will not suffice. People v. O Hara III, 240 P.3d 283 (Colo. App. May 13, 2010) Wiretap application must be authorized by the elected DA or the Attorney General, but he or she is not required to make the actual application for the warrant. Wiretap application has specific provisions that must be strictly adhered to, but the elected DA is not required to personally apply for a wiretap, and he may delegate such application duties to a designated official. Nonetheless, the elected DA must be aware of and give authorization to apply for a wiretap. Case remanded for further hearing on whether the elected DA gave authorization. People v. Gutierrez, 222 P.3d 925 (Colo. Dec. 14, 2009) A person has a reasonable expectation of privacy with respect to their income tax returns and supporting documents even when those documents are located at their tax preparer s business. Any invasion of a person s 4 th Amendment interests must be justified by specific and articulable facts directed to the person whose interests are to be invaded. Therefore, a search warrant to search a tax preparer s business must contain facts establishing probable cause with each individual s tax return that is located at that business to justify the search and seizure of specific individual s tax records. Here, the affidavit supporting the search warrant did not contain facts establishing probable cause to search and seize Gutierrez s tax records it only authorized searching and seizing unspecified tax records found at the business. The officers executing the search relied on a warrant issued by a judge. The supreme court went on to state that the good faith exception to the exclusionary rule did not apply because the court found the affidavit was so lacking in indicia of probable cause that official belief in its existence is unreasonable and no reasonably well-trained officer could rely on it. 2. GOOD FAITH Page 15 of 57
People v. Hoffman, P.3d, 2010 WL 1491645 (Colo. App. 2010) The Court of Appeals noted that the test for good faith is whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization, taking into account all of the circumstances surrounding the issuance of the warrant. Officers cannot assume a warrant is valid because it was signed by a judge. The deputy who executed the warrant is the same deputy who prepared the affidavit. The court noted the deficiency of the affidavit and held that the deputy either knew or should have known that the warrant he obtained was lacking in probable cause, and thus it was objectively unreasonable for him to rely on it. People v. Butler, P.3d, 2010 WL 2853750 (Colo. App. July 22, 2010) Police executed a search warrant at defendant s residence. The warrant was not a no knock warrant, which means the police must knock-and-announce their presence and wait a reasonable amount of time before entering. Defendant alleged the police failed to do so and sought suppression of the evidence discovered. Pursuant to Hudson v. Michigan, 547 U.S. 586 (2006), under the Fourth Amendment, violations of the knock-and-announce rule does not permit suppression of evidence found in the search. 3. STALENESS People v. Crippen, 223 P.3d 114 (Colo. Feb. 1, 2010) The trial court in part suppressed this search warrant as the audit it was based upon was two years old. The Supreme Court reversed. The court states that "whether information about particular contraband, instrumentalities, fruits, or even `mere evidence' of a crime has become `stale,' however, is not simply a question of the passage of time." They then go through an analysis of how records are kept until the purpose they served is completed. "In the absence of some indication that they were no longer needed in the normal course of business or that someone with access had become aware that their continued existence posed too great a risk, one might reasonably expect records or accounts of this kind to be maintained at a regular place of business for relatively long periods of time." A. SUFFICIENCY OF THE ADVISEMENT II. STATEMENTS Florida v. Powell, 559 U.S., 130 S.Ct. 1195 (2010) Defendant was arrested for armed robbery. He was brought to the police station and advised of his rights: "You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you Page 16 of 57
want during this interview." He complains that this advisement failed to adequately advise him of his right to have counsel present during the interrogation. The Court held that this advisement was adequate because the defendant would have understood from the advisement that the right to consult with an attorney before answering "any" questions would have been understood by a person of ordinary intelligence to mean that this right attached to each question and not just the first question. There is no requirement that the advisement given by the police follow a particular script. Instead, the important inquiry is whether or not the advisement given adequately conveys the four rights the defendant has: (1) that he has the right to be silent; (2) that anything he says can be used against him in a court or law; (3) that he has the right to the presence of an attorney; and (4) that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. This advisement was adequate in the Court's view. B. CUSTODY- MIRANDA People v. Mumford, P.3d, 2010 WL 961644 (Colo. App. March 18, 2010) Police executed a warrant to arrest defendant s friend at defendant s home and to search the home. The police had defendant wait on a curb outside, and asked if there was anything they needed to know. Defendant advised the officer he had a small amount of cocaine in his bedroom for his personal use. Defendant challenged the admissibility of his statements under Miranda and due to involuntariness. Not every Fourth Amendment "seizure" constitutes "custody" under Miranda. "[C]ustody arises only if the restraint on freedom is [of] a certain degree - the degree associated with formal arrest" (citing United States v. Bengivenga, 845 F.2d 593, 598 (5th Cir. 1988)). Here: At the time the detective asked his questions, defendant was clearly being temporarily detained. However, there was nothing to elevate the encounter from a temporary detention not requiring Miranda warnings to a custodial situation akin to formal arrest: (1) the encounter occurred outside defendant's home; (2) the defendant knew the officers' immediate focus was on another person for whom they had a warrant; (3) police questioning of the defendant was brief; (4) the tone was conversational; and (5) the defendant was not handcuffed. The COA likened this scenario to a Terry stop rather than formal arrest. People v. Null, 233 P.3d 670 (Colo. 2010) Held: The defendant was subjected to custodial interrogation when: police detained him on the side of the road for "a relatively lengthy period"; he was not free to leave; he failed several roadside sobriety tests, giving the officers reasonable grounds for arrest; and two officers surrounded him and interrogated him without advising him of his rights. As such, the failure to advise the defendant pursuant to Miranda warranted suppression of his statements. C. CUSTODY MIRANDA- WARNING AND WAIVERS People v. Vickery, 229 P.3d 278 (Colo. 2010) Page 17 of 57
Defendant was in custody on charges in one jurisdiction, and was interviewed by officers investigating a different; offense in another jurisdiction. He was represented by counsel on Case #1. Defendant was given,a Miranda advisement on Case #2, signed a waiver, and then proceeded to discuss both offenses, volunteering information about Case #1. The trial court suppressed the defendant's statements, finding that defendant's waiver was knowing, voluntary, and intelligent, but was insufficient to waive defendant's Sixth Amendment right to counsel. Held: A knowing, voluntary, and intelligent Miranda waiver is sufficient to waive both a defendant's Fifth and Sixth Amendment rights to counsel. Citing Montejo v. Louisiana, 129 S.Ct. 2079, 2090, 2092 (2009). People v. Ferguson, 227 P.3d 510 (Colo. March 22, 2010) Defendant provided a false name upon being contacted by police. He was arrested and booked. During booking, he was Mirandized. Defendant agreed to speak, then after being confronted with evidence, he requested an attorney. The interview terminated. Shortly thereafter, Defendant asked to speak with the officer. The officer spoke with Defendant, who confessed his true identity. Two days later, two investigators contacted Defendant, who claimed to have mental problems due, in part, to meth withdrawal. He repeatedly asked for mental help and told the investigators they could get him to admit to anything right now. Defendant also stated he thought there should be a lawyer or his mother present. The investigator then stated, you need to tell me what you want to do. Defendant then stated, I want to talk to you; I do. The trial court suppressed the statements made to the two investigators. The SC found that the waiver was voluntary, knowing and intelligent and that coercive government conduct did not play a role in inducing the waiver. Although the police became aware of Defendant s mental fragility, they did nothing to exploit it. The SC emphasized that the totality of the circumstances must be examined. D. RE-INITIATION OF INTERROGATION BY LAW ENFORCEMENT Maryland v. Shatzer, 559 U.S., 130 S.Ct. 1213 (2010) The defendant was serving a prison sentence on a sexual assault case when he was custodially interrogated by a detective about another sexual assault of his son. He requested a lawyer. Two and a half years later law enforcement developed the case more, and another detective from the same unit went to the prison, re-advised him of Miranda and obtained a waiver. The issue in the case is whether the rule in Edwards v. Arizona, 451 U.S. 477 (1981), precludes the second attempt. In Edwards the court held that "when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.... [He] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at 484-485. In declining to extend Edwards to this situation, the court limits it to a predetermined time frame stating: Page 18 of 57
The protections offered by Miranda, which we have deemed sufficient to ensure that the police respect the suspect's desire to have an attorney present the first time police interrogate him, adequately ensure that result when a suspect who initially requested counsel is re-interrogated after a break in custody that is of sufficient duration to dissipate its coercive effects.... We think it appropriate to specify a period of time to avoid the consequence that continuation of the Edwards presumption will not reach the correct result most of the time. It seems to us that period is 14 days. That provides plenty of time for the suspect to get acclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.(citation omitted). The court determines that this break is a break in custody to re-acclimate to normal life. The court finds that even though Shatzer was in prison, he was there serving a prior sentence, so for his purposes, this was his normal life. E. MIRANDA-IMPLIED WAIVER Berghuis v. Thompkins, 559 U.S., 130 S.Ct. 2250 (2010) Police provided Miranda warnings to respondent, who was then largely silent during a threehour interrogation before answering "yes" when asked if he prayed to God to forgive him for the shooting. Held: (1) respondent did not invoke his right to remain silent through his silence during the interrogation - a suspect must invoke his right to remain silent "unambiguously," just as with the right to counsel under Davis v. United States, 512 U.S. 452 (1994).; and (2) respondent waived his right to remain silent when he knowingly and voluntarily made a statement to the police - reaffirming that a Miranda waiver can be "implied" through conduct. To establish an implied waiver, the state needs to show that a Miranda warning was given and that it was understood by the accused. People v. Martin, 222 P.3d 331 (Colo. Jan. 19, 2010) Defendant was a suspect in a murder case. He heard police were looking for him, so he voluntarily went to the police station. Officers told him he was in custody shortly after some introductory questions. One of the two officers advised him of his Miranda rights. Defendant confirmed his understanding of his rights. Neither officer asked if he wished to waive his rights or if he wanted an attorney to be present during questioning. Officers then began their questioning. Defendant made incriminating statements over a two hour period before invoking his right to remain silent. The trial court suppressed his statements. The SC ruled that the Defendant impliedly waived his Miranda rights by continuing to speak with officers and answering their questions. An express oral or written statement is not always necessary. Waiver can be inferred from the words or actions of the individual. The SC also found that Defendant s waiver was knowing, intelligent and voluntary, based on his cooperative demeanor and the fact that police did not use any coercive tactics. Effland v. People, P.3d, 2010 WL 3733539 (Colo. Sept, 27, 2010) Page 19 of 57
A suicide pact between defendant and his wife resulted in the wife and adult daughter dead, and the defendant hospitalized. The next day, two officers arrived at the hospital to question defendant. Defendant was in the ICU and the doctor told the officers to return later. An officer was stationed outside the room. Another daughter of defendant informed officers she was trying to hire legal counsel for defendant. Later that day, the two officer returned to the hospital and attempted to speak with defendant. He declined and refused to sign a medical waiver. The officer came back the next day. The daughter asked to be present but the officer insisted on being alone with defendant. The officers sat close to defendant and asked to speak with him. Defendant said he would prefer to speak to an attorney first. The officers said they needed to hear his side of the story. Defendant again referenced getting an attorney. The officers kept the conversation going, and eventually told him he was not charged with a crime and not entitled to an attorney. One of the officer then told defendant they had collected evidence and explained his theory about what had happened: that defendant murdered his wife, with her consent, and then tried to kill himself. Defendant broke down emotionally and stated, all of your surmises are correct. Defendant then made further admissions before ceasing the interview. No Miranda warnings were ever given. The trial court denied the motion to suppress, finding that Defendant was not in custody and therefore not entitled to Miranda warnings or an attorney. The SC concludes that Defendant was in custody and that his statements were involuntary. The SC clearly relied on the totality of circumstances, which were fairly extreme in this case. The SC acknowledged that Defendant was in the hospital and immobile for reasons under related to police conduct, and that he was told he was not under arrest, but a reasonable person in Defendant s situation would feel that his freedom of action was curtailed to a degree associated with arrest; therefore, he was in custody. As to voluntariness, the SC finds that Defendant was in a weakened physical and mental state, yet the officers continued to question him in spite of his requests to not speak until he conferred with a lawyer. Therefore, the officers conduct was sufficient to overbear Defendant s will to resist and Defendants statements were not the product of an essentially free and unconstrained choice. A. INFORMATIONS III. CHARGING AND PRE-TRIAL PROCEDURE People v. Strock, P.3d, 2010 WL 3259736 (Colo. App. Aug. 19, 2010) Where defendant claims that the habitual criminal counts are insufficient: The People have the burden of proving beyond a reasonable doubt that defendant has been previously convicted as charged. The sufficiency of the information is reviewed for whether it "serves the fundamental objectives" rather than "technical pleading requirements." When the defect is one of form, defendant must show prejudice from the lack of specificity. Reversal is unwarranted if defendant had adequate notice of the underlying offense. Page 20 of 57
The information included correct case numbers but incorrectly identified the offenses as "habitual traffic offender" instead of "aggravated driving after revocation" and "driving after revocation prohibited." Held: No reversible error because defendant failed to show that he was prejudiced by the misnomer or lacked adequate notice ofthe underlying offenses to enable him to prepare a defense. The information incorrectly listed the date of defendant's plea (instead of sentencing) in one count and contained an incorrect date in another count. Held: Defendant failed to show that he was prejudiced by the errors. B. GUILTY PLEAS- ADVISEMENTS Padilla v. Kentucky, 559 U.S, 130 S.Ct. 1473 (2010) Counsel provides constitutionally deficient representation under the first prong of Strickland v. Washington, 466 U.S. 668 (1984), if she fails to advise her non-citizen client whether a plea of guilty carries the risk of deportation. More precisely, where deportation is the clear consequence of pleading guilty, counsel has a duty to advise the defendant of that fact; where the deportation consequences of a plea are unclear, counsel must advise the defendant that pleading guilty may carry adverse immigration consequences. The court did not extend its holding to other collateral consequences of pleading guilty, finding that deportation has unique consequences and is intimately related to the criminal process. And the court did not address whether petitioner is entitled to relief, which depends on whether he can show prejudice, an issue the lower courts can address on remand. C. CONDITIONAL PLEAS People v. Neuhaus, 240 P.3d 391 (Colo. App. Nov. 25, 2009) cert. granted in part, 2010 WL 3389325 (Colo. 2010) Conditional guilty plea are not permitted in Colorado because there is no court rule or statute authorizing conditional guilty pleas, and the general rule is that a valid guilty waives the right to attack most pretrial decisions. In this case, the defendant was permitted to withdraw his plea upon remand. Cert. granted in Neuhaus v. People, 10SC27. on the issue of whether the COA erred in announcing a new rule prohibiting conditional guilty pleas in Colorado. (See also People v. Hoffman (April 15, 2010), which comes to the opposite result and recognizes conditional guilty pleas as a part of Colorado law. People v. Hoffman, P.3d, 2010 WL 1491645 (Colo. App. 2010) The trial court denied the motion to suppress and the defendant entered a conditional guilty plea; conditional in the sense that he retained his right to appeal the trial court's decision. Declining to follow People v. Neuhaus, _ P.3d _, 2009 WL 4069568, the court determined to hear the appeal. D. JURISDICTIONAL DEFENSES- DOUBLE JEOPARDY- MULTIPLE PROSECUTIONS People v. Gladney, P.3d, 2010 WL 1915048 (Colo. App. May 13, 2010) Page 21 of 57
Defendant charged with first degree murder. Prior to trial, defendant was indicted and tried in federal court for seven counts of RICO crimes, one of which was the murder charged in state court. Both the state and federal governments may prosecute a person for the same offense without violating the double jeopardy prohibition of the federal constitution. Colorado, however, has rejected this course of action pursuant to C.R.S. 18-1-303. Section 18-1-303 thus sets forth a five-part test that must be met before a Colorado prosecution is barred by an earlier federal prosecution: (1) the first prosecution must have resulted in a conviction or an acquittal; (2) the same conduct must form the basis of both prosecutions; (3) the conduct must constitute an offense within the concurrent jurisdiction of this state and of the United States; (4) the offense for which the defendant was formerly convicted or acquitted requires proof of the same facts required by the offense for which he is subsequently prosecuted; and (5) the law defining each of the offenses is intended to prevent substantially the same harm or evil. In this case, the state prosecution was not barred for a number of reasons: the defendant s conduct did not constitute an offense within the concurrent jurisdiction of the United States and Colorado; the murder of the victim was not a separate prosecutable offense under federal law; and, the RICO Act required proof of additional elements that were not required in the state murder case. E. JURISDICTIONAL DEFENSES- DOUBLE JEOPARDY- MULTIPLE PUNISHMENTS People v. Aguilar-Ramos, 224 P.3d 402, (Colo. App. 2009) cert. denied, 2010 WL 427424 (Colo. 2010) There was no double jeopardy violation where the defendant's second-degree kidnapping conviction was enhanced because the kidnapped person was a victim of sexual assault even though the defendant was acquitted of sexual assault. The kidnapping statute only requires that the person kidnapped be a victim of sexual assault not that the kidnapper be the perpetrator of that assault. People v. Vigil, P.3d, 2010 WL 2105871 (Colo. App. May 27, 2010) The General Assembly's amendment of the theft statute - responding to Roberts v. People, 203 P.3d 513 (Colo. 2009), and disavowing any intent to create a mandatory unit of prosecution for thefts committed within a six-month time period - did not apply retroactively. Where the timing of discrete thefts allows for alternate groupings in multiple six-month time periods, a district attorney may choose which units of prosecution to charge. The Court of Appeals, however, has no such discretion and in order to maximize duplicitous theft verdicts, it must select the grouping maintaining the most convictions and resulting in the longest sentence F. JURISDICTIONAL DEFENSES DETAINERS UMDDA Page 22 of 57
People v. Gess, P.3d, 2010 WL 1710737 (Colo. App. April 29, 2010) A defendant can make a UMDDA claim on appeal even if he pled guilty. A defendant can make a UMDDA demand when he is on parole.a defendant can make a UMDDA demand for charges that arise during his incarceration. A trial court may ignore a pro se UMDDA demand filed by a represented defendant. A UMDDA demand is insufficient if it is not addressed to the prosecuting authority; a request that the trial court forward, it to the "appropriate parties" is not sufficient. A UMDDA demand must be given to the superintendent where the defendant is confined and not mailed directly to the trial court. Making a UMDDA demand in open court where the prosecution is present gives the prosecution actual knowledge of the demand. A defendant may toll the UMDDA limitation period where he or his counsel requests a continuance. A formal waiver of the UMDDA limitation period is not necessary where the defendant or his counsel request a continuance, distinguishing People v. Carr, 205 P.3d 471 (Colo. App. 2008). G. DISCOVERY V. CONFIDENTIALITY People In the Interest of A.D.T., 232 P.3d 313 (Colo. App. 2010) Once a court has made the determination that the moving party has made a sufficient showing to warrant an in camera review of social service records, the court is obligated to review all the records notwithstanding the fact that such review may impose a significant burden. Here: the juvenile court abused its discretion in refusing to review all the volumes of the social service records when it had-already determined that the moving party had made the necessary showing that information in those records might be necessary for the determination of an issue before the court. Where the juvenile court has performed an in camera review of materials sought by the defense and has made disclosure determinations that are properly challenged on appeal, the right to meaningful review requires that the appellate court conduct independent in camera review. A district court's erroneous failure to disclose documents does not, in and of itself, establish prejudice or reversible error. To obtain a new trial for a discovery violation, a defendant must show a reasonable likelihood that the verdict would have been different had the pertinent information been disclosed before trial. Here: The case is remanded for the juvenile court to consider, among other things: whether the records would have been admissible under the rape shield statute; whether the records would have been admissible under CRE 403; and whether the defense knew, or could reasonably have discovered elsewhere, the information contained in the undisclosed records. H. DISCOVERY V. CONFIDENTIALITY RESTITUTION People v. Rivera, P.3d, 2010 WL 961648 (Colo. App. March 18, 2010) Page 23 of 57
Counseling and mental health costs are considered expenses under the restitution statute. Confidential records submitted in a request to a victim compensation board are confidential by operation of statute and may only be disclosed following an in camera review. To obtain an in camera review of the records underlying a victim's application for restitution, a defendant must show that: 1) his or her request is not speculative, and (2) such documents would tend to disprove all or part of the prosecution's request on the basis that the requested damages were not proximately caused by the defendant's conduct. Here: The defendant's request for disclosure of the victim's medical records failed at both steps. First, the defendant's request was speculative because there was no evidence that the victim received counseling prior to being sexually assaulted by the defendant. Second, the defendant failed to establish a basis for disclosure; although he argued that his sexual assault may not have been the sole basis for the victim's therapy, he did not assert that it was not at least a partial contributing factor. See People ex rel. KM, 232 P.3d 310 (Colo. App. 2010) where it was determined that an in camera review was warranted based on the trial court's findings with respect to the issue of causation in that the court found the defendant was only responsible for the victim's broken jaw, and not broken hand. I. SUBPOENAS People v. Spykstra, 234 P.3d 662 (Colo. 2010) The prosecution has standing to contest a SDT. Crim. P. 17(c) expressly contemplates production of evidence by a subpoenaed witness in court, not search and seizure of the witness's property by the defense. Here: The defense issued a subpoena duces tecum to a child sex assault victim's parents seeking access to the parents' computers to retrieve any email written by the victim; the trial court ordered the parents to comply with the SDT. The Supreme Court reversed, holding that the defense should have been required to present a specific factual basis demonstrating a reasonable likelihood that the email sought (1) existed on the parents' computer, and (2) contained material evidence. In the absence of such a finding, the court order turned the SDT into the functional equivalent of a search warrant for the defense. The court adopts a similar test as in United States v. Nixon, with an added initial element "to make explicit what is otherwise inherent. When a criminal pretrial third party subpoena is challenged, a defendant must demonstrate: 1) A reasonable likelihood that the subpoenaed materials exist, but setting forth a specific factual basis; 2) That the materials are evidentiary and relevant; 3) That the materials are not otherwise procurable reasonably in advance of trial by the exercise of due diligence;4) That the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and 5) That the application is made in good faith and is not intended as a general fishing expedition J. MOTIONS HEARINGS Page 24 of 57
People v. Gomez-Garcia, 224 P.3d 1019 (Colo. App. 2009) cert. denied, 2010 WL 597940 (Colo. 2010) The defendant was advised at the suppression hearing that if he testified that the statements he made to the police were involuntary, the People would be permitted to ask him about the content of each statement made. The court found that the district court did not abuse its discretion in advising the defendant that this cross would be allowed. The Court of Appeals notes first that a defendant may invoke his Fifth Amendment privileges not to incriminate himself and that the court should limit cross examination to those issues relevant to the suppression motion. However the court also noted that the prosecution had made a record about how the questions would be relevant such as "how the alleged coercion could have caused the alleged statements." The appellate court thus found that these questions would not implicate the defendant's Fifth Amendment privileges. K. PRELIMINARY HEARING People v. Pena, P.3d, 2009 WL 2961294 (Colo. App. 2009) cert. denied, 2010 WL 3623637 (Colo. 2010) The defendant was arrested for aggravated driving after revocation prohibited. After one day he posted bond and was released. A few days later he began serving a one-year jail sentence on another case in Pueblo County. No writ was issued to return him for his first appearance in El Paso County, so a warrant was issued for failing to appear. After the warrant was served, he was returned to El Paso County and advised. He requested a preliminary hearing. The court set the preliminary hearing to occur timely. He was returned to Pueblo and continued serving his sentence and subsequently failed to appear after again not being writted back. He ultimately was returned on a writ and moved to dismiss the case for failure to timely have his preliminary hearing. The trial court granted this, and was reversed by the Court of Appeals. The analysis centers on the fact that his "primary custody" was in Pueblo where he was serving a sentence, and he was only in temporary custody in El Paso County on the writ which ordered the defendant returned to Pueblo after the hearing. This temporary custody did not "constitute custody for the offense for which the preliminary hearing is requested." The court further points out that the purpose of the preliminary hearing is to ensure that persons are not held in custody on charges for which there is no probable cause. This situation does not pose that risk as the defendant is in custody anyway. In re People v. Nichelson, 219 P.3d 1064 (Colo. Nov. 9, 2009) A district court has the authority to restore a defendant s right to a preliminary hearing where waiver of that right was based on a miscommunication or misunderstanding in the plea agreement. L. CONSTITUTIONAL SPEEDY TRIAL Page 25 of 57
People v. Glaser, P.3d, 2010 WL 185447 (Colo. App. Jan. 21, 2010) Defendant had four different counsel throughout his case (his second counsel committed suicide; the third counsel had a mental health breakdown during the middle of trial, which caused a mistrial). There was at least a two and a half year delay between indictment and trial, which included eight rescheduled trial dates. The case was on interlocutory appeal for a portion of this time, and there were delays due to the lawyer changes. Constitutional speedy trial begins at filing of charges or with arrest. Defendant has the burden of proving it has been denied. The determination is based on a balancing of four factors: length of delay; reasons for delay; defendant's assertion or demand for a speedy trial; and prejudice to the defendant. This appeal follows the U.S. Supreme Court case of Vermont v. Brilion, 129 S.Ct. 1283 (2009), where the court held that delays caused by defendant's counsel are attributable to the defendant for constitutional speedy trial purposes. The court reminds us that where the delay is necessary to provide the defendant with effective assistance of counsel, the court should conduct an inquiry to see if any counsel is available that can conduct the trial within the statutorily proscribed time and the record should show that the delay was necessary to protect the right to effective assistance of counsel. See People ex rel. Gallagher v. District Court, 933 P.2d 583, 588 (Colo. 1997). If the length of the delay (first factor) is presumptively prejudicial (suggested to be approaching one year) then the other factors are considered, but the burden of proof is still with the defendant. The court goes through a very fact-specific analysis addressing such issues as whether to attribute an interlocutory appeal to the defense. The defendant argues that it was the courts error that led to it. The Court of Appeals notes that it was the defendant erroneously convincing the court to make that error that led to the appeal, thus it is attributable to the defendant. The court also spends time discussing the complexity of the case and how that impacts what is a reasonable speedy trial. There are many more individual instances which are analyzed before the court concludes under the totality of the circumstances there has not been a violation. The COA rationale hinges on the issue of prejudice, and defendant s inability to demonstrate prejudice under the facts of this case. M. CHANGE OF VENUE People v. Nevarez-Zambrano, 222 P.3d 329 (Colo. Jan. 11, 2010) Defendant was charged with Criminal Impersonation. Defendant worked and earned wages in Yuma County. He allegedly used a fictitious SSN to obtain employment in Yuma County. Defendant utilized Amalia s Tax Service in Weld County to file his tax forms. The trial court granted a motion to change venue to the 13 th Judicial District, concluding that the filing of the tax forms was not an act in furtherance of the Criminal Impersonation. The SC agrees and finds that the Defendant would have fully completed the alleged crime prior to the filing of any tax returns. Therefore, the defendant s act of filing tax returns from a Greeley tax preparer could not constitute an act in furtherance of the crime. Thus, no nexus between criminal act and Weld County. Page 26 of 57
IV. COUNSEL A. DISQUALIFICATION OF DISTRICT ATTORNEY People v. Perez, 238 P.3d 665 (Colo. Sept. 13, 2010) The DA s Office received over $90,000 in compensation from the Department of Corrections for the costs of prosecuting defendant. There were some irregularities with the funding arrangement, and the County Commissioners had not approved the funding. Trial court held that the DA had a financial interest in the prosecution of defendant and disqualified the DA. The SC overruled. The SC concluded that the trial court focused exclusively on the financial interest aspect to the exclusion of considering whether that[financial interest] would render it unlikely that the defendant would receive a fair trial. Therefore, a DA or her office s financial interest is a statutorily authorized basis for disqualification only if the financial interest would render it unlikely that the defendant would receive a fair trial. Because there is no evidence that the funding arrangement in this case would render it unlikely that Perez would receive a fair trial, the court reversed the trial court's disqualification order. B. DEFENDANT S RIGHT TO COUNSEL OR SELF-REPRESENTATION People v. Brante, 232 P.3d 204 (Colo. App. 2009) cert. denied, 2010 WL 2489372 (Colo. 2010) The Sixth Amendment right to counsel does not require that a pro se defendant who voluntarily absents himself from his criminal trial be appointed counsel during his absence. C. CONFLICTS OF INTEREST/COUNSEL OF CHOICE People v. Samuels, 228 P.3d 229 (Colo. App. 2009) cert. denied, 2010 WL 1267362 (Colo. 2010) A conflict of interest under the Rules of Professional Conduct does not necessarily equate with a violation of a defendant's right to effective assistance; of counsel. Defense counsel does not have a conflict of interest where he represented a prosecution witness in unrelated cases and his representations of that witness ended before his representation of the defendant began. People v. Ragusa, 220 P.3d 1002 (Colo. App. 2009) In order to demonstrate a violation of her Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected her lawyer's performance. Follows Cuyler v. Sullivan, 446 U.S. 335 (1980). A defendant has a right to be present at every critical stage of her criminal trial. Here: Where the defendant's privately-retained attorneys met with the court and Page 27 of 57
the prosecutors in the defendant's absence, disclosed client confidences, and concealed the disclosure from the defendant, the defendant's Sixth Amendment rights to conflict-free counsel and counsel of her choice were violated. People v. Curren, 228 P.3d 253 (Colo. App. 2009) cert. denied, 2010 WL 1436207 (Colo. 2010) Defendant alleged that counsel told him to flee to Mexico before trial; counsel denied any such action. The issue was summarily resolved, and the defendant proceeded to trial with counsel. Defendant did not testify at trial. In a later 35(c) motion, defendant alleged that counsel had an actual conflict of interest and should have withdrawn from the case. The 35(c) court found that (1) counsel had not advised the defendant to abscond, but (2) the allegation alone created an actual conflict of interest. The court held that counsel should have withdrawn, and ordered a new trial. The Court of Appeals affirmed, holding there was evidence in the record to support the conclusion that trial counsel had an actual conflict of interest, and that the defendant could have been adversely affected (the court reasoned that counsel may not have called the defendant to testify because he feared the defendant's allegations might be revealed to the jury). D. INEFFECTIVE ASSISTANCE OF COUNSEL People v. Brown, P.3d, 2010 WL 726038 (Colo. App. March 4, 2010) cert. denied, 2010 WL 3529295 (Colo. 2010) In claiming ineffective assistance of counsel based on counsel's failure to perfect an appeal, the requisite prejudice differs from the prejudice required in most other ineffectiveness claims because a defendant need only demonstrate that (1) counsel's performance caused a forfeiture of the defendant's right to appeal, and (2) the defendant could have and would have pursued the appeal. The defendant need not establish any likelihood' of success on appeal. Under the fugitive disentitlement doctrine, an appellate court may dismiss the appeal of a defendant who is a fugitive from justice during the pendency of his appeal. Here: After sentencing, the defendant was granted bond pending appeal. He fled shortly after counsel filed a notice of appeal, thereby forfeiting his right to appeal. Padilla v. Kentucky, 559 U.S., 130 S.Ct. 1473 (2010) Counsel provides constitutionally deficient representation under the first prong of Strickland v. Washington, 466 U.S. 668 (1984), if she fails to advise her non-citizen client whether a plea of guilty carries the risk of deportation. More precisely, where deportation is the clear consequence of pleading guilty, counsel has a duty to advise the defendant of that fact; where the deportation consequences of a plea are unclear, counsel must advise the defendant that pleading guilty may carry adverse immigration consequences. The court did not extend its holding to other collateral consequences of pleading guilty, finding that deportation has unique consequences and is intimately related to the criminal process. And the court did not address whether petitioner is entitled to relief, which depends on whether he can show prejudice, an issue the lower courts can address on remand Page 28 of 57
People v. Brown, P.3d, 2010 WL 726038 (Colo. App. March 4, 2010) cert. denied, 2010 WL 3529295 (Colo. 2010) Defendant fled while on an appeal bond. Defendant s counsel withdrew and never perfected his appeal. The defendant claimed ineffective assistance of counsel for the failure to perfect an appeal, which he believes he would have won. A defendant claiming ineffective assistance must show that counsel s performance was deficient and that the poor performance caused him prejudice. The COA concluded it was defendant s flight, not counsel s performance, that impaired his ability to appeal. E. WHEN RIGHT TO COUNSEL APPLIES- WAIVER People v. Vickery, 229 P.3d 278 (Colo. 2010) Defendant was in custody on charges in one jurisdiction, and was interviewed by officers investigating a different offense in another jurisdiction. He was represented by counsel on Case #1. Defendant was given a Miranda advisement on Case #2, signed a waiver, and then proceeded to discuss both offenses, volunteering information about Case #1. The trial court suppressed the defendant's statements, finding that defendant's waiver was knowing, voluntary, and intelligent, but was insufficient to waive defendant's Sixth Amendment right to counsel. Held: A knowing, voluntary, and intelligent Miranda waiver is sufficient to waive both a defendant's Fifth and Sixth Amendment rights to counsel. Citing Montejo v. Louisiana, 129 S.Ct. 2079, 2090, 2092 (2009). People v. Broder, 222 P.3d 331 (Colo. Jan. 11, 2010) Defendant was an Erie police officer transporting an 18-year old female prisoner to jail. He purportedly made unwanted sexual advances toward her during transport. After the victim reported, Greeley Police arrested Defendant and initiated an interrogation. Following the Miranda advisement, Defendant asked to speak to his lieutenant about getting coverage for him. The detective and Defendant engaged in a vague discussion for several minutes, but the detective eventually asked if he wanted to contact his lieutenant about coverage for counsel. Defendant agreed that was his concern, then stated I ll talk to you. Defendant reiterated this two more times. He then signed the Miranda waiver. The trial court suppressed Defendant s statements, after finding that he had invoked his right to counsel and such request was not honored. The SC overruled and held that Defendants statements about counsel were ambiguous; therefore, the detective was permitted to ask additional questions to clarify Defendant s ambiguous statements. It is only in those situations in which the defendant s statement about the right to counsel are unambiguous that the police must cease all questioning. A statement is ambiguous when it gives rise to opposing inferences. The SC also focused on the fact that Defendant here was a police officer who potentially faced civil or administrative matters, and his vague references to coverage may have referred to counsel for those purposes. Page 29 of 57
People v. Bergerud, 223 P.3d 272 (Colo. Jan. 11, 2010) This was a double homicide murder trial. Defendant wanted to assert self-defense or an acquittal-based defense at trial. During opening statements, his attorney focused on Defendant s low IQ, his diabetes, and his intoxicated state at the time of the killings. His attorney also suggested that Defendant was so confused he likely did not accurately remember what happened. Defendant fired his lawyers after the opening statement, requested substitute counsel, and when denied he elected to proceed pro se. Defendant claimed his attorney never properly investigated his acquittal-based defense. His attorneys did not testify during the hearing on their withdrawal. The question before the SC was whether Defendant s waiver of his right to counsel was knowing, voluntary and intelligent, which depended on whether his attorneys trial decisions violated his rights, thus forcing him to choose between his right to counsel and the right to testify or to plead not guilty. On issues of trial strategy, the defense counsel is captain of the ship. The defendant, however, gets to choose whether to plead guilty, whether to testify, whether to waive a jury trial, and whether to pursue an appeal. There are three basic limitations on defense counsel s decisionmaking: (1) defendant s constitutional rights; (2) attorneys may contravene the truth-seeking purpose of trial; and, (3) trial strategy decisions are held to a standard of professional reasonableness. The problem in this case is that his attorneys may have undermined his ability to testify by stating that he did not know what happened, and may have essentially pled him to a lesser offense against his will. Additionally, there is a question as to whether there was a complete breakdown in communications that resulted in his attorneys failing to investigate his desired selfdefense theory. The SC concluded that the opening statement did not violate his right to enter a not guilty plea. In order for concessions to amount to a violation of defendant s right to plead not guilty, the concession must rise to the level of judicial admissions. However, the record was insufficient to address the other two issues and the case was remanded. F. WHEN RIGHT TO COUNSEL APPLIES- STATES People v. Moore, P.3d, 2010 WL 2105873 (Colo. App. May 27, 2010) Following a preliminary hearing, defendant's initial counsel was allowed to withdraw. The defendant had difficulty finding and affording new counsel and made several appearances pro se. At each appearance, the judge instructed him to find counsel. The trial court, without asking the defendant if he wanted to proceed pro -se or warning him of the risks associated therewith, entered not guilty pleas on his behalf. Eventually, appointed counsel entered and he was convicted of first-degree assault on a peace officer, among other things. He alleged that being deprived of counsel for arraignment was error warranting reversal. The Court of Appeals noted that defendants are entitled to representation by an attorney at all critical stages of a criminal case. Arraignment is a critical stage. A trial may be presumptively unfair if the defendant was Page 30 of 57
denied representation of counsel at a-critical stage. The- absence of counsel at a critical stage is analyzed under a constitutional harmless error standard. Although there are some rights that are lost if not raised near in time to 'the arraignment, none of those issues were raised, nor were motions on those lines denied as untimely, and he did not desire to pursue any of those issues. There was no prejudice and thus this error was harmless beyond a reasonable doubt. A. JUDICIAL V. MISCONDUCT Crumb, Jr. v. People, 230 P.3d 726 (Colo. 2010) Defendant was charged with 50 counts of theft, forgery, criminal impersonation, and offering a false instrument for recording in twelve cases. He was also charged as a habitual criminal. On the eve of trial, the court inquired of the pro se defendant if he was considering taking a plea deal. The trial court talked to the defendant "as a human being," rather than as a judge, compared the penalties and discretion available should the defendant plead rather than be convicted at trial, and stated that he would not be "a happy judge" if a deal was not reached. The Supreme Court held that the judge had improperly inserted himself into the plea negotiations and had indicated that the defendant should plead guilty. Multi-factor test for determining when guilty pleas should be withdrawn: (1) prejudice to prosecution; (2) promptness of motion to withdraw plea; and (3) whether the defendant has shown that justice will be subverted if the motion is denied. Court held that factors 1 and 2 were in the People's favor, but that the judge's conduct ran counter to the fair and impartial administration of justice and denying the motion to withdraw the plea was an abuse of discretion. B. PROSECUTORIAL Wend v. People, 235 P.3d 1089 (Colo. 2010) Use of the word "lie" or any of its other forms to refer to the defendant's or a witness's veracity is categorically improper. Here, the prosecutor erred in repeatedly using the words "lies," "lied," and "liar" during opening and closing statements. The error was plain error because: 1) the defendant's credibility was essential to her claim of self-defense; 2) there was no weaker language used like "did not tell you the truth"; 3) there was no context surrounding the statements that would ameliorate the prejudicial impact of repeating the word "lie"; and 4) although defense counsel also used the word, he did so only in response to the interrogation video, which the prosecution had stressed throughout the trial and repeatedly raised in opening and closing statements. People v. Davis, P.3d, 2010 WL 2105878 (Colo. App. May 27, 2010) Prosecutor's statements in closing that the jury could believe one witness and that another witness's testimony had a "ring of truth" were not statements of personal opinion; they were arguments concerning reasonable inferences grounded in the evidence. Page 31 of 57
People v. Medina, P.3d, 2010 WL 3035203 (Colo. App. Aug 5, 2010) To establish a claim of prosecutorial misconduct based on the presentation of perjured testimony, a defendant must show: (1) that the prosecution's case included perjured testimony; (2) that the prosecution knew or should have known of the perjury; and (3) that the perjury was material, i.e., that there was a reasonable likelihood that the false testimony could have affected the judgment of the jury. Where evidence as to which confederate actually shot a victim is disputed, it is not improper for the prosecution to argue that a defendant should be convicted under "alternative legal theories" (i.e., that he was liable as either the principal or the complicitor). People v. Blackwell, P.3d, 2010 WL 2305904 (Colo. App. June 10, 2010) An intentional, concerted effort to deprive a defendant of exculpatory testimony through witness intimidation may deprive the defendant of a fair trial. To prevail on such a claim, the defendant must show, by a preponderance of the evidence, governmental interference with a defense witness's choice to testify. Unnecessarily strong admonitions against perjury aimed at discouraging defense witnesses from testifying, or comments amounting to a threat beyond what the record indicates is necessary and appropriate, may deprive a criminal defendant of his or her Sixth Amendment right to obtain witnesses. A claim that the People intentionally interfered with a defense witness or intimidated the witness into not testifying is considered under the totality of the circumstances. Among the factors to consider are: (1) the manner in which the prosecutor raised the issue, including the warnings' extent and timing, the language employed, and whether the prosecutor communicated directly with the witness or through an attorney; (2) the prosecutor's basis in the record for believing the witness might lie;.(3).the warnings' effect on the witness's willingness to testify; (4) whether the court attempted to remedy any misconduct; and (5) whether the prosecutor capitalized on the witness's absence by directing the jury's attention to it during closing argument. People v. Collins, P.3d, 2010 WL 547623 (Colo. App. Feb. 18, 2010) It was not misconduct for the prosecutor in closing to refer to the defense theory that the DNA evidence left reasonable doubt was "absurd," when it was followed up with a factual explanation of why it was absurd. It was not used as a personal attack on defense counsel. Here the evidence was that the DNA hit was such a precise match that only one out of 300 trillion people would match 12 of the 13 markers. People v. Strock, P.3d, 2010 WL 3259736 (Colo. App. Aug. 19, 2010) The prosecutor did not improperly appeal to the jury's sympathies during closing argument in a vehicular homicide/dui case when he argued that a witness who thought defendant was going to crash into him "easily could have been lying on that slab in the coroner's office;" or referred to defendant as a "loaded gun" for everyone on the highway that night. Held: The former was a fair inference from the evidence and the latter was a permissible oratorical embellishment. The prosecutor misstated the law regarding proximate cause by saying "even if ten phantom cars collided with [defendant's] vehicle" before he crashed and killed his passenger, defendant would still be the proximate cause of the victim's death. Held: Not plain error because of ample Page 32 of 57
evidence that defendant's driving while intoxicated proximately caused the victim's death and the jury was properly instructed-regarding proximate cause. Commenting on the lack of evidence supporting defendant's factual allegations or theory does not shift the burden of proof. Held: Not plain error where the prosecutor during closing argument pointed out that defendant did not (1) prove that the victim was wearing her seat belt, survived the crash, and was hit and killed by an unknown vehicle; or (2) present evidence that he was not driving at the time of the crash. A. SPECIFIC CRIMES VI. TRIAL 1. VEHICULAR HOMICIDE People v. Reynolds, P.3d, 2010 WL 961645 (Colo. March 18, 2010) Defendant was charged with 2 counts of Extreme Indifferent Murder and Vehicular Homicide as a result of a road rage incident. His defense was that one of the other driver s caused the accident when he swerved into the defendant s vehicle. He presented two experts at trial that opined the other driver likely collided with the defendant accidentally. Defendant requested an affirmative defense instruction of independent intervening cause; however, the court denied the request. Evidence that defendant swerved in front of the first driver and engaged his brakes, which resulted in that driver's losing control, crossing the median, and colliding with the second driver's car was sufficient to support defendant's conviction for vehicular homicide of the second driver, whose death was a natural and probable consequence of defendant's conduct. It was foreseeable that defendant's conduct in swerving in front of the first driver and engaging his brakes would result in the collision between the first driver and the second driver travelling in the opposite direction on a divided highway, and the death of the second driver. The foreseeability limitation applied to civil liability for negligence does not apply to criminal liability for homicide. "An independent intervening cause defense is treated as an affirmative defense for the purpose of determining the quantum of evidence necessary to submit the defense to the jury" (citing People v. Saavedra-Rodriguez, 971 P.2d 223, 228 (Colo. 1998)). "Whether a defendant has met this burden is a question of law for the trial court." Id. "To destroy the causal connection, the intervening cause must be conduct in which the defendant did not participate" (citing People v. Stewart, 55 P.3d 107, 121 (Colo. 2002)). "Thus, when a later event contributes to the outcome, but would not have occurred but for the defendant's own conduct, the later event is not independent of the defendant's conduct and does not operate to relieve the defendant of liability." Id. (citing Gallimore v. Commonwealth, 436 S.E.2d 421, 447 (Va. 1993) (third party's shooting of the victim was not an independent intervening cause because, but for the defendant's false story, the third party would not have killed the victim). The victim's alleged intentional collision with defendant's car, even if grossly negligent and unforeseeable, did not constitute an independent intervening cause sufficient to break the chain of events that began with defendant's admitted swerving in front of the victim and engaging his brakes. Page 33 of 57
2. EXTREME INDIFFERENCE MURDER People v. Reynolds, P.3d, 2010 WL 961645 (Colo. March 18, 2010) The evidence was sufficient to support defendant's conviction for extreme indifference murder of two drivers in a road rage incident, notwithstanding the fact that his conduct was specifically directed at one of the drivers. Slip. Op. at 12-17 (citing Candelaria v. People, 148 P.3d 178 (Colo. 2006)). The court states that even when a person acts with the conscious objective of killing a particular person, he may do so in a manner that to a rational mind also demonstrates extreme indifference to the value of human life generally or in a manner that to a rational mind merely demonstrates a willingness to take the life of that particular individual. In this case of road rage, there was sufficient evidence of a grave risk of death to the victim and all drivers of nearby vehicles generally 3. SEXUAL OFFENSES AGAINST CHILDREN In re People v. Day, 230 P.3d 1194 (Colo. 2010) Defendant was charged with 2 counts of sexual assault on a child and one count of pattern abuse as a sentence enhancer. Counsel and the trial court all agreed during jury instructions that a verdict of attempted sex assault on one or both counts would render the sentence enhancer invalid. Defendant was convicted of two counts attempted sexual assault on a child for two separate incidents. A different sentencing judge sentenced Defendant to an enhanced sentence under the pattern of abuse theory. In this original proceeding under C.A.R. 21, the SC rules that a pattern of sexual abuse is the commission of two or more incidents of sexual contact involving a child when such offenses are committed by an actor against the same victim. As a matter of law, an acquittal of sexual assault and a conviction of attempted sexual assault cannot be used as a basis for the pattern of abuse sentence enhancer. 4. THEFT BY RECEIVING People v. Crawford, 230 P.3d 1232 (Colo. App. 2009) cert. denied, 2010 WL 1843043 (Colo. 2010) The values of things received and disposed of may be aggregated under subsections (2) through (5) of the theft by receiving statute. Where acts are committed pursuant to a single criminal impulse, they may be combined into one count and need not be prosecuted under the six-month provision of the theft by receiving statute. Here, the defendant's acts of disposing of stolen items were properly considered part of a single criminal impulse where: all the stolen property belonged to the same victim; was stolen in one incident; was subject to one police investigation; and was described in the same testimony at trial. The evidence supported an inference that the defendant received the property at the same time;; and the defendant conceded that she pawned or sold Page 34 of 57
several of the items in order to recoup bond money she posted for her boyfriend, the suspected thief of the items. If multiple items are taken during a theft episode, the value of the items may be added up (aggregated) to satisfy the monetary amount for a felony. 5. WEAPONS VIOLATIONS People v. O'Neal, 228 P.3d 211 (Colo. App. 2009) cert. denied, 2010 WL 1436208 (Colo. 2010) Under 18-1-901(3)(h), the phrase "capable or intended to be capable" does not modify each type of possible firearm listed in the statute. Because it modifies only "other instrument or device," under 18-1-901(3)(h), a pistol (no matter what its condition, no matter what a defendant's intent may be with respect to it) is a "per se" firearm. People v. Montez, P.3d, 2010 WL 961652 (Colo. App. March 18, 2010) Each weapon possessed by a previous offender constitutes a separate POWPO offense. 6. BURGLARY People v. Montez, _ P.3d _, 2010 WL 961652 (Colo. App. March 18, 2010) A defendant is "armed" with a deadly weapon in flight from a burglary if the weapon is "easily accessible and readily available for use by the defendant for either offensive or defensive purposes." No nexus between the commission of the crime and the weapon is required. An unloaded shotgun is a deadly weapon. Where defendant removed two unloaded shotguns from a gun case during a burglary, there was sufficient evidence for the jury to find that defendant committed the burglary when a deadly weapon was easily accessible and ready for use by defendant. B. RIGHT TO A JURY AND WAIVER OF RIGHT People v. Laeke, P.3d, 2010 WL 4069898 (Colo. App. Nov. 25, 2009) cert. granted, 2010 WL 3529275 (Colo. 2010) The right to a jury trial in a criminal case is inherently personal and can only be waived by the defendant. Hence, a defendant must personally waive his or her right to a jury trial, and a statement by defense counsel does not operate as a waiver. Thus, a defendant who is found to be insane after an insanity examination is still entitled to a jury trial. Defendant s counsel cannot waive the right to jury trial. In other words, the insane defendant is still entitled to present his defense of Not Guilty on a factual basis at trial. Jury can come to one of three conclusions: Guilty, Not Guilty or NGRI. Defendant wanted a Not Guilty finding, and his counsel cannot waive that right by pleading him to NGRI. Over the defendant's objection, his counsel entered a NGRI plea at the arraignment.. The defendant was advised and then a mental evaluation was ordered. He was found incompetent initially. Once he was restored to competency, he was evaluated and found to be insane at the Page 35 of 57
time of the commission of the offenses. At a hearing following this, the prosecution stipulated that the defendant was insane. Defense counsel asked that the court accept the stipulation. The defendant objected stating that he hoped "to prove he didn't do this in trial." The court accepted the stipulation and committed the defendant to CMHIP until he was restored to sanity. The Court of Appeals reversed the finding of insanity. Colorado's insanity procedure post-1995 is to hold a trial where the finder-of-fact is asked to determine if the defendant has been proven guilty or is not guilty. If the defendant is found not guilty, there is a special interrogatory for them to answer as to whether the reason they found him not guilty was due to the issue of his sanity. As such, the pre-1995 bifurcated procedure for determining sanity first has been changed. The court ultimately relies on the right to a jury trial, which is personal to the defendant, and cannot be waived by counsel. Because we now have a unitary procedure for proving both guilt and sanity, even though Colorado law supports the idea that the entry of the NGRI plea can be made by counsel over the defendant's objection, if the right to a jury trial is maintained, then the defendant's rights to have the People prove the elements of the crime will be honored. People v. Montoya, P.3d, 2010 WL 726037 (Colo. App. March 4, 2010) The trial court established that defendant understood his right to jury trial, that he wanted to waive it, that no one had pressured him, that he was not under the influence, and that he had ample opportunity to consult his attorney prior to making a decision. However, the trial court did not conduct an on-the-record colloquy to assess whether the waiver was knowing, voluntary and intelligent, nor did it inquire of the factors listed in Rule 23. There is no constitutional right to waive a trial by jury; but in order for a waiver to be valid there is a constitutional requirement that it be voluntary, knowing, and intelligent. This case addresses only the proper advisement of a defendant upon waiving a jury trial pursuant to C.R.Crim.P. 23(a)(5)(II). Although a colloquy is not constitutionally required in order to waive a jury trial, Crim. P. 23(a)(5)(II) requires that trial courts conduct on-the-record advisements informing defendants of specific elements of their right to a trial by jury and of certain consequences if they waive that right. Here: The exchange between the trial court and the defendant established that (1) the defendant understood that he had a right to a jury; (2) he wanted to waive the jury and try the case to the judge; (3) no one pressured him to waive the jury; (4) he was not affected by drugs or alcohol when making this decision; and (5) he had consulted with his attorney before making his decision. But the trial court did,not determine whether he understood that (1) his decision to waive a jury trial was his alone and could be made contrary to his counsel s advice; (2) the waiver would aply to all issues that might have been determined by a jury, including those requiring factual findings at sentencing; and (3) the jury would have consisted of twelve persons who would be required to reach a unanimous verdict, whereas in a trial to the court the judge alone would decide the verdict, all of which are required by the amended: rule. Therefore, the advisement was deficient. The case was remanded for an evidentiary hearing to resolve the validity of the defendant's waiver pursuant to the directive in People v. Blehm, 983 P.2d 779, 792 (Colo. 1999). C. PUBLIC ACCESS Page 36 of 57
Presley v. Georgia, 559 U.S., 130 S.Ct. 721 (2010) Held: Petitioner's Sixth Amendment right to a public trial was violated because the public was excluded from the voir dire of prospective jurors. The court pointed to two earlier decisions (Waller v. Georgia, 467 U.S. 39 (1984), and Press-Enterprise Co. v. Superior Court of California, Riverside County, 464 U.S. 501 (1984)) that expressly held that the trial court must consider alternatives before closing the courtroom to the public. The court does recognize that there are times when a judge may exclude for legitimate purposes, stating: "the right to an open trial may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information." Waller v. United States, supra. "Such circumstances will be rare, however, and the balance of interests must be struck with special care." D. JURY SELECTION- People v. O'Shaughnessy, P.3d, 2010 WL 1491646 (Colo. App. April 15, 2010) The trial court did not clearly err in the third step of the Batson analysis regarding the prosecutor's peremptory challenges against three Hispanic prospective jurors: The decisive question at the third step of the Batson analysis is whether counsel's race-neutral explanation for a peremptory challenge should be believed. The trial court satisfied the third step of the analysis because its ruling that the prosecutor articulated race-neutral reasons implicitly included a finding that those reasons were credible. The trial court did not have to personally observe a prospective juror's demeanor to credit the prosecutor's demeanor-based, race-neutral reason for striking the prospective juror. Here: The trial court could not see the prospective juror, and thus could not personally verify the prosecutor's explanation that he challenged her for rolling her eyes during voir dire. The defendant failed to demonstrate that non-minority jurors were similarly situated to one of the Hispanic prospective jurors where the prosecutor challenged the prospective juror because she might be sympathetic to people on drugs based on her job providing counseling at a drug rehabilitation facility. Defense counsel stated only that the nonminority jurors "may have empathetic situations," and the record did not show that any of them worked with people using drugs. A defendant does not waive his Batson objection by failing to rebut a prosecutor's raceneutral explanation when given the opportunity. Here: Defense counsel rebutted the prosecutor's race-neutral explanations for two Hispanic prospective jurors, but not for the third. People v. Novotny, P.3d, 2010 WL 961657 (Colo. App. March 18, 2010) An assistant attorney general who handles civil cases is still a compensated employee of a public law enforcement agency and therefore must be excused for cause from jury service, upon request. A prospective juror s responsibilities within the organization are immaterial. This is a Page 37 of 57
bright line rule. First degree murder and first degree burglary convictions reversed and remanded for the failure to follow Rule 24 and C.R.S. 16-10-103(1)(k). E. WITNESSES COMPETENCY People v. Alley, 232 P.3d 272 (Colo. App. 2010) cert. denied, 2010 WL 2582266 (Colo. Oct. 15, 2010) An intoxicated witness is competent to testify. The BAC of.233 was a little too high for the trial court, which required the witness to sit in a waiting room. Five hours later, the BAC was down to.084, and over the defendant s objection, the witness was allowed to testify. The court did inform the jury of the witness intoxication level. By the end of the witness testimony, he was down to.049, and the jury was also informed of that result. A witness is not required to be sober, but is only required to have the capacity to observe, recollect, communicate and understand the oath to tell the truth. A trial court should be given wide latitude in determining the admissibility of an intoxicated witness's testimony, and it is the jury's role to determine the witness's credibility. One day to get ready for a felony crime of violence trial is sufficient time to prepare, and does not merit a continuance or reversible error. F. CHILD WITNESSES People v. Wittrein, 221 P.3d 1076 (Colo. Dec. 14, 2009) While the better practice is to hold the child competency hearing outside the jury's presence, it is a decision within the trial court's discretion. Here, there was no prejudice where the questions posed to the child were germane and the trial court's competency ruling was done outside the jury's presence. G. EXPERTS People v. Wittrein, 221 P.3d 1076 (Colo. Dec. 14, 2009) The expert's testimony that she could not imagine an eight-year-old child hyper-reporting in order to be seen as a victim was invited error. The expert's answer was reasonably foreseeable given the wording of defense counsel's question. The question, if error on the part of defense counsel, was not simply an oversight but an error in strategy. H. PRIVILEGE AGAINST SELF INCRIMINATIONS- WITNESSES People v. Blackwell, P.3d, 2010 WL 2305904 (Colo. App. June 10, 2010). The privilege against self-incrimination can be invoked by anyone whose statements or answers might admit the commission of illegal acts or furnish a link in the-chain of evidence needed to prosecute that Page 38 of 57
person for a crime. The burden lies: with the person invoking the privilege to establish that it is properly invoked. Once the district court finds that the privilege is properly invoked, it has no obligation to inquire further. The district court may only compel a response or punish a witness for refusing to testify if it is perfectly clear from a careful consideration of all the circumstances that the witness's answers cannot possibly have a tendency to incriminate him I. EVIDENCE 1. RELEVANCE- CRE 403 People v. Harland, P.3d, 2010 WL 2681271 (Colo. App. July 8, 2010) Testimony that the defendant was identified through a hit in a DNA database is relevant because without it, the jury would be left to speculate how the defendant became the accused. Also, it is not unfairly prejudicial where no evidence is presented as to how an individual's DNA profile might come to be in a database; any inference that the jury would think the defendant had prior convictions is speculation. 2. CRE 404(b)/RES GESTAE People v. Harland, P.3d, 2010 WL 2681271 (Colo. App. July 8, 2010) Defendant was identified as a suspect in a sexual assault through a DNA database match. The trial court did not err in admitting evidence of the DNA database match because: (1) the detective only briefly testified about the DNA database; (2) the detective did not testify as to how defendant s DNA came to be in the database; and (3) no evidence was presented that defendant had previously engaged in criminal conduct. People v. Gladney, P.3d, 2010 WL 1915048 (Colo. App. 2010),In a murder trial where the defendant killed the victim following a disputed drug deal; the trial court properly admitted, under the res gestae doctrine, evidence of the. defendant's drug dealing activity and of the disputed drug deal, because it was a necessary and integral part of the story of the crime, without which there would have been no explanation of the defendant's motive for killing the victim. A limiting instruction is not required for res gestae evidence. 3. PRIVILEGES People v. Wittrein, 221 P.3d 1076 (Colo. Dec. 14, 2009) It was error for the Court of Appeals to review the child victim's medical records. Here: Child victim had waived medical privilege to medical records concerning initial disclosure and PTSD diagnosis, but had not waived (either expressly or impliedly) her privilege as to her ongoing therapy records. When a defendant requests educational records of the child victim, the court must balance the privacy interest of the child against the defendant's need for the information. The court should consider the following factors: (1) the nature of the information sought; (2) the relationship between this information and the issue in dispute; and (3) the harm that may result Page 39 of 57
from the disclosure. If the defendant's need outweighs the privacy interests, the court should conduct an in camera review. A general discovery request is not a sufficient proffer from the defendant establishing his need to have the records reviewed. J. HEARSAY- GENERAL People v. Buckner, 228 P.3d 245 (Colo. App. 2009) cert. denied, 2010 WL 1644914 (Colo. 2010) A cell phone is an electronic device containing electronically stored information; it is not a person or a declarant making a communicative statement within the meaning of CRE 801. The stored telephone numbers on the cell phone were not hearsay. People v. Thornton, P.3d, 2010 WL 4361373 (Colo. App. Sept. 30, 2010) The Kelley Blue Book may be admitted as proof of value of a motor vehicle under CRS 18-4- 414(2) and C.R.E. 803(17). Expert testimony is not required to substantiate valuation of a vehicle. Any data entered into a computer or website to arrive at the Kelley Blue Book value goes only to the weight and not the admissibility of the valuation. This issue was reviewed under plain error analysis since the defendant did not raise it during trial. K. DEFENDANT S RIGHTS- TO BE PRESENT AND TO TESTIFY People v. Price, 240 P.3d 557, (Colo. App. June 24, 2010) A defendant may waive his right to be present at trial, and right to testify, by his voluntary absence after the trial began in his presence - in particular here by creating a medical necessity that results in his absence from trial. The defendant attempted suicide on the second day of trial. As his suicide noted reflected that he intended to permanently absent himself from trial, the trial court could find that he voluntarily waived his right to be present under Crim. P. 43(b)(1). Also, a defendant who voluntarily absents himself or herself from trial necessarily waives his or her right to testify. L. CURTIS ADVISEMENT AND WAIVER People v. Emert, 240 P.3d 514 (Colo. App. June 10, 2010) Where defendant faced drug and possession of weapon by previous offender (POWPO) charges in a bifurcated proceeding, standard Curtis advisement at drug trial was insufficient to alert defendant that any relevant admissions he made during that trial could be used as substantive evidence in the POWPO trial. When a defendant asserts that his decision to exercise his right to testify was not knowing, voluntary, and intelligent because he was misadvised as to the consequences of testifying; he is entitled to a Blehm-type hearing (People v. Blehm, 983 P.2d Page 40 of 57
779 (Colo. 1999)) on whether he detrimentally relied on the insufficient advisement. If such reliance is established, defendant is entitled to a new trial. People v. Davis, P.3d, 2010 WL 2105878 (Colo. App. May 27, 2010) Prior to his arrest, Defendant had two telephone interviews with the police. Defendant asserted his right to remain silent following his arrest. At trial, defendant elected to testify, which included the statement that I had already told the police everything that happened. The COA ruled this opened the door to the prosecution s cross-examination questions about defendant s post-arrest silence. M. JURY INSTRUCTIONS People v. Taylor, 230 P.3d 1227 (Colo. App. Nov. 12, 2009) The defendant was charged with several offenses, including Illegal Discharge of a Weapon, which requires proof of the knowing or reckless discharge of a firearm into any occupied building or occupied motor vehicle. The trial court denied the affirmative defense of selfdefense as to this charge. Trial court reversed and new trial ordered because the defendant should have received the affirmative defense instruction as to the knowing element of Illegal Discharge of a Weapon. Defendant is not entitled to affirmative defense instruction as to the reckless mens rea, but the trial court must include a separate instruction that the jury may consider evidence of self-defense in determining whether he acted recklessly. COA suggests separate instructions for this crime, one for knowingly mens rea, the other for the recklessly mens rea. People v. Medina, P.3d, 2010 WL 3035203 (Colo. App. Aug. 5, 2010) The pattern burglary instruction covering "a building or occupied structure" was not required to also specify that the building must be a "dwelling"; whether that building is also a "dwelling" is relevant only to the potential penalty classification of a second-degree burglary. The court gave an instruction on complicity that tracked the pattern instruction. The pattern instruction does not include the language that a complicitor must act "with the intent to promote or facilitate the commission of the offense." The defendant did not object at trial, but objects on appeal that this was error. The Court of Appeals notes that the pattern instruction has been disapproved of several times and that an-instruction on complicity should include this language. The court declined to reverse on this ground holding that there was not a reasonable possibility that the instructional error contributed to his felony murder conviction. People v. Sanchez, P.3d, 2010 WL 2521736 (Colo. App. June 24, 2010) A court may in its discretion tender a flight instruction when evidence supports that the defendant had a reason to believe he committed a crime; he had reason to believe his identity' was known; he had reason to believe his pursuit and apprehension were likely; and he fled or Page 41 of 57
concealed himself to frustrate his apprehension. Here: There was sufficient evidence to support flight instruction; therefore, regardless of what defense the defendant pursued, the court did not abuse its discretion in tendering that instruction to the jury. People v. Wylie, P.3d, 2010 WL 3431876 (Colo. App. Sept. 2, 2010) The trial court did not abuse its discretion by failing to give the jury an instruction stating that, if they rejected defendant's affirmative defense of insanity, they could still consider evidence of his mental illness when determining if he had the requisite intent for the charged offense. Distinguishing People v. Vanrees, 125 P.3d 403 (Colo.2005). N. JURY ACCESS- EVIDENCE DeBella v. People, 233 P.3d 664 (Colo. 2010) The procedure to be used when providing a jury with a videotaped interview during deliberations will be left to the discretion of the trial court. However, the failure to exercise discretion is an abuse of discretion even if the defendant does not pose an objection. The trial court has an obligation to assure that juries are not permitted to use exhibits in a manner that is unfairly prejudicial to a party. O. UNANIMITY People v. Vigil, P.3d, 2010 WL 2105871 (Colo. App. May 27, 2010) The trial court did not err in failing to require the jurors to unanimously agree on the theory supporting theft. Following People v. Dunlap, 124 P.3d 780 (Colo. App. 2004). P. VERDICTS- INCONSISTENT VERDICTS People v. Sanchez, P.3d, 2010 WL 2521736 (Colo. App. June 24, 2010) In this case, the defendant was convicted of first-degree murder - after deliberation, and 1 count of first-degree assault - heat of passion for one victim and 1 count of first-degree assault - heat of passion and one count of second-degree assault- heat of passion for the other victim. Because there was no objection by the defense at trial, this was reviewed under a plain error standard to determine if the verdicts were so inconsistent as to require a reversal. The court first stated that Colorado does not require consistent verdicts. The only time it will result in reversal is where "the existence of an element of one of the crimes negates the existence of a necessary element of the other crime." Because the presence or absence of heat of passion is not an element of first or second degree assault, the inconsistency does not require reversal. Brown v. People, 239 P.3d 764 (Colo. Sept. 20, 2010) A defendant who maintains his innocence throughout trial may seek and receive inconsistent jury instructions on both a lesser-included offense and voluntary intoxication, provided there is a Page 42 of 57
rational basis in the evidence. In this case, the defendant sought a lesser-included offense instruction and voluntary intoxication instruction, after maintaining his absolute innocence. A court may give one or both, if there is a rational basis in the evidence. Under the facts of this case, there was not a rational basis for either instruction. Q. SUFFICIENCY OF EVIDENCE FOR CONVICTION People v. Gallegos, P.3d, 2010 WL 725448 (Colo. App. March 4, 2010) The Sheriff of Conejos County used jail inmates to build an addition onto his home and to cut firewood for his personal use and sale. This all occurred from 1998 to 2003. This, of course, required the use of county vehicles and county employees (sheriff s deputies) to transport and supervise the inmates. The inmates were not paid and the county was not reimbursed. Sheriff Gallegos was indicted on charges of embezzlement of public property and criminal extortion, and found guilty at trial. On appeal, defendant alleged the indictment was insufficient. COA held that the element of public moneys or public property for embezzlement included the use of county vehicles and employees to transport the inmates to work on his home. COA also held that the threat to confine or restrain element for criminal extortion was satisfied when the Sheriff threatened to transfer an inmate to another jail away from his family if he refused to perform construction work on the Sheriff s home. People v. Reeves, P.3d, 2010 WL 2681263 (Colo. App. July 8, 2010) Defendant was convicted of possessing more than 1 gram of oxycodone, a schedule II controlled substance and class 4 felony (at the time). A lab technician testified that the tablet found in defendant s possession weighed 1.03 grams and contained oxycodone; however, she also admitted the tablet may contain other substances. Defendant argues that he should have been convicted of the lower level felony rather than the class 4 (more than 1 gram) felony. The COA rejected this argument and pointed to the clear language of the statute (C.R.S., 18-18- 405) that possession of more than one gram of any material, compound, mixture, or preparation that contains a schedule I or II controlled substance. Thus, the relevant inquiry is not the purity or percentage of the controlled substance contained in the quantity of drugs, but rather the weight of substance containing the drugs (excluding packaging). VII. SENTENCING A. FACTUAL BASIS- CONSECUTIVE SENTENCES People v. Maestas, 224 P.3d 405 (Colo. App. 2009) cert. denied, 2010 WL 530280 (Colo. Page 43 of 57
2010) A defendant who pleads guilty to multiple offenses and waives the establishment of a factual basis for at least one of the offenses waives the right to demand concurrent sentencing pursuant to 18-1-408(3), C.R.S. (2009), unless the defendant negotiated a guilty plea including a stipulation for concurrent sentences. Here: The defendant waived a factual basis for the seconddegree assault charge and did not negotiate a concurrent sentencing stipulation as part of her guilty pleas. Therefore, the trial court had authority to impose consecutive sentences on her three convictions. B. PROBATION REVOCATIONS People v. Loveall, 231 P.3d 408, (Colo. May 17, 2010) The prosecution may rely upon hearsay evidence for proving technical violations in a probation revocation hearing, but the prosecution must timely provide the defendant with the names of all declarants. This is a minimum requirement to satisfy due process concerns. See C.R.S., 16-11- 206. The SC does not provide any guidance or definition of what constitutes timely disclosure, but it would likely depend on the number of witnesses and the nature of the declarant s statements. Where one or more bases for revoking probation are set aside on appeal, the revocation remains valid only where the record clearly shows the trial court would have revoked probation even without the consideration of the improper factors. C. SENTENCE REDUCTION CRIME OF VIOLENCE People v. Moore, P.3d, 2010 WL 2105873 (Colo. App. May 27, 2010) Under 181.3-401(1)(a), which authorizes a trial court to reduce a crime of violence sentence where it finds "unusual and extenuating circumstances," the fact that the victim was not injured cannot, as a matter of law, be considered such a mitigating circumstance where injury was not an element of the crime. D. MERGER AND MULTIPLICITY People v. Vigil, P.3d, 2010 WL 2105871 (Colo. App. May 27, 2010) On its own motion and after receiving supplemental briefing, the court applied Roberts v. People, 203 P.3d 513 (Colo. 2009), to merge two of the defendant's theft counts into one class 4 felony theft count. The people argued on appeal that if they are merged, then the value goes into the F3 range. The court declined to do this. The court concluded the fundamental nature of multiplicity and the emergence of Roberts justified its sua sponte intervention. Because the defendant had been sentenced consecutively on the merged counts, the court remanded for resentencing. Page 44 of 57
People v. Garcia, P.3d, 2010 WL 3914741 (Colo. App. Sept. 30, 2010) Defendant was convicted of possession of more than 8 ounces of marijuana and possession of marijuana with intent to sell or distribute. He contended that his possession conviction was a lesser included offense of the possession with intent charge and that his convictions and sentences should merge. COA agrees and holds that C.R.S., 18-1-408 requires merger of the two convictions. In comparing the substantive elements of the charged offenses for merger analysis, the court does not consider penalty enhancers. The eight-ounce or more quantity requirement is merely a sentence enhancer and not an essential element; therefore, the weight issue does not preclude merger. E. RESTITUTION- SURCHARGES People in the Interest of D. W., 232 P.3d 182 (Colo. App. 2009) cert denied, 2010 WL 2488971 (Colo. 2010) If a victim incurs expenses to avoid or mitigate the consequences of a specific and ongoing threat related to the offender's unlawful conduct, such expenditures qualify as compensable restitution under 18-1.3602(3)(a); however, expenditures resulting from a generalized feeling of insecurity are too attenuated from the offender's conduct, and thus do not qualify. Here: The trial court abused its discretion by ordering a juvenile to pay for expenditures related to the sale of the victim's house because the prosecution did not carry its burden of proving that the victim faced a specific and ongoing threat sufficient to necessitate the family's relocation. People v. Griffiths, P.3d, 2010 WL 2305879 (Colo. App. June 10, 2010) Neither incarceration nor indigence renders a defendant financially unable to pay the statutorilymandated drug offender surcharge. People v. Wilson, P.3d, 2010 WL 2521740 (Colo. App. June 24, 2010) The statute of limitations for charging a crime does not apply to plea bargains, and thus a trial court has subject matter jurisdiction to impose restitution for a charge that would otherwise be barred by the statute of limitations. People v. Rivera, P.3d, 2010WL961648 (Co1o. App. March 18, 2010) Counseling and mental health costs are considered expenses under the restitution statute. Confidential records submitted in a request to a victim compensation board are confidential by operation of statute and may only be disclosed following an in camera review. To obtain an in camera review of the records underlying a victim's application for restitution, a defendant must show that: 1) his or her request is not speculative, and (2) such documents would tend to disprove all or part of the prosecution's request on the basis that the requested damages were not proximately caused by the defendant's conduct. Here: The defendant's request for disclosure of Page 45 of 57
the victim's medical records failed at both steps. First, the defendant's request was speculative because there was no evidence that the victim received counseling prior to being sexually assaulted by the defendant. Second, the defendant failed to establish a basis for disclosure; although he argued that his sexual assault may not have been the sole basis for the victim's therapy, he did not assert that it was not at least a partial contributing factor. People ex rel. KM., 232 P.3d 310 (Colo. App. 2010) The fact that a crime victim compensation board has made an award of compensation does not determine the offender's liability for disbursement. Rather, as with any other claim for restitution, the trial court has an obligation to make an independent determination whether the prosecution has carried its burden of proving, by a preponderance of the evidence, that a particular loss was proximately caused by an offender's conduct. People v. Bowerman, P.3d, 2010 WL 3431879 (Colo. App. Sept. 2, 2010) The defendant argued that the amount of restitution imposed by the trial-court was "not authorized by law" under Crim. P. 35(a) because the prosecution did not prove: the amount by a preponderance of the evidence, due to the following; (1) the only testimony supporting the amount was that of the victim, who was not placed under oath before testifying; (2) the trial court did not affirmatively offer an opportunity for defense counsel to cross-examine the victim; and (3) the victim's testimony that the defendant "must have" stolen certain items was based entirely on speculation. The Court of Appeals found this to be an assertion that the restitution order was imposed "in an illegal manner" and that it was time-barred, because Crim. P. 35(a) requires such challenges to be raised within 120 days of sentencing. People v. Brooks, Jr., P.3d, 2010 WL 1915087 (Colo. App. May 13, 2010) A district court does not have the authority to include, as part of a direct sentence to community corrections or DOC, a restitution order from an unrelated juvenile case. The juvenile restitution order remains a valid order over which the juvenile court continues to have jurisdiction. Thus, until defendant satisfies his juvenile restitution obligation or the court issues an order specifically terminating such obligation, the juvenile court will have jurisdiction over the original order. People v. Padilla-Lopez (Colo. App. July 22, 2010) Defendant was arrested as the result of a sting operation in which someone in her home sold drugs; upon executing a search warrant, drugs and needles were found within reach of defendant s children. Defendant was charged with possession and child abuse. DHS also took her children and placed them in foster care, thus incurring expenses, as a result of defendant s conduct. Defendant accepted a plea bargain that included a plea to child abuse and agreed to pay restitution. The court ordered defendant to pay $19,295 in restitution on behalf of DHS. The COA overturned the restitution award because DHS is not a victim under C.R.S. 18-1.3-602. Page 46 of 57
F. SVP DETERMINATION People v. Buerge, P.3d, 2009 WL 3764078 (Colo. App. Nov. 12, 2009) cert. denied, 2010 WL 2991478 (Colo. 2010) The defendant pled guilty to and was convicted of possession of a schedule II controlled substance and attempted sexual assault based on an internet sting with law enforcement posing as a 14-year-old girl. When the defendant arrived to meet with the girl he was arrested in possession of drugs and sexual paraphernalia. The court found him to be a SVP. He appeals on the grounds that there was not an `actual victim.' There are four requirements for a person to be designated a SVP. At issue is the third prong involving the "victim" being a "stranger to the offender." "By its plain terms, the statutory definition of `victim' applies when a completed assault has occurred because it identifies someone who has actually been subjected to an assault " The court then goes on to note that in attempt crimes, there may be no victim, as the crime is completed upon the person taking a substantial step. Because the General Assembly included attempt crimes in the SVP statute, it must have intended the statute to apply to them. The court then goes on to conclude that `victim' for attempt purposes means `intended victim'. The court reaffirmed that trial courts must make specific findings of fact prior to making a determination that an offender meets the definition of a sexually violent predator. People v. Gallegos, P.3d 2010 WL 2960853 (Colo. App. 2009) cert., granted, 2010 WL 3213060 (Colo. 2010) The trial court's finding that-the defendant was a sexually violent predator was not supported by the record. The "established a relationship" criterion applies when (1) an offender, from the outset, seeks out a victim from individuals with whom he or she has no definable relationship, and (2) sexual victimization is the primary purpose of the relationship. Here: Because the defendant already had a relationship with the victim independent of the sexual victimization, the offender cannot be considered to have established the relationship for that purpose. People v. Brosh, P.3d, 2010 WL 2105937 (Colo. App. May 27, 2010) Defendant was convicted of sexual assault on a child. At sentencing he was classified as a sexually violent predator (SVP). On appeal, defendant argued that the screening instrument for SVP, known as the sex offender risk scale (SORS) does not meet the statutory requirements of C.R.S., 18-3-414.5. The COA disagreed and held that SORS does satisfy C.R.S., 18-3-414.5. The SORS checklist was developed by the Sex Offender Management Board (SOMB) and relied on research related to the risk assessment of sex offenders. G. PROBATION- TWO PRIOR FELONY RULE People v. Nance, 221 P.3d 428, (Colo. App. 2009). Page 47 of 57
Defendant pled to Felony Menacing and the prosecution waived the 2-prior felony rule to permit defendant to receive probation. Defendant violated probation and was revoked. At sentencing, the prosecution requested DOC, arguing that since the defendant had 2-prior felonies he was not eligible for probation. Trial court disagreed and re-sentenced defendant to probation. This is a case of first impression in Colorado. COA holds that a prosecutor s recommendation to waive the 2-felony rule in a plea agreement remains in effect after probation is revoked, and all sentencing options available to the court at the initial sentencing hearing remain available to the court. The 2-felony rule waiver is not negated by a revocation of probation. The trial court retains discretion to sentence a defendant to probation pursuant to 18-1.3201(4) (a)(i), C.R.S. (2009). The COA notes that the McDaniels rule that the sentence imposed upon revocation is not limited by a cap in the plea agreement also remains good law. H. AGGRAVATION People v. Schreiber, 226 P.3d 1221 (Colo. App. Oct. 15, 2009) cert. denied, 2010 WL 706051 (Colo. 2010) The prior conviction provision in 18-7-302(4), which increases a conviction for indecent exposure from a class 1 misdemeanor to a class 6 felony if the defendant has two prior convictions for indecent exposure or a comparable offense, is a sentence enhancer and is not required to be proven to a jury beyond a reasonable doubt; instead, it may be found by the court and must only be proven by a preponderance of the evidence. I. CONSECUTIVE AND CONCURRENT TERMS People v. O'Shaughnessy, P.3d, 2010 WL 1491646 (Colo. App. April 15, 2010) Section 18-1.3-406(1)(a), C.R.S. (2009), mandates consecutive sentences for two or more crimes of violence arising out of the same incident only if the crimes of violence are separate. Crimes of violence are separate if they are not based on identical evidence. Here: The attempted firstdegree murder, attempted aggravated robbery, and second-degree assault convictions were all based on identical evidence involving the defendant stabbing the victim six times and demanding money from her while she was seated in her parked car. Therefore, the crimes of violence were not separate, and the trial court erred by imposing consecutive sentences. J. HABITUAL CRIMINAL 1. PROPORTIONALITY REVIEW People v. Strock, P.3d, 2010 WL 3259736 (Colo. App. Aug. 19, 2010) Whether a crime is "grave and serious" is a "somewhat imprecise" inquiry and requires a comparison of the harm caused to the victim or society and the culpability of the defendant. Held-Vehicular homicide - DUI is a "grave and serious per se because of the grave harm caused and the culpability of defendant's conduct." Page 48 of 57
It is not necessary for each of the predicate offenses to be "grave and serious" for a court to conclude that the offenses taken together are grave and serious. Here: Defendant's vehicular homicide/dui conviction plus his predicate convictions felony driving after revocation prohibited were properly considered "grave and serious" because - the license revocations were for prior DUI convictions; one offense involved an accident causing property damage; defendant had an extensive history of traffic violations including six prior DUIs and multiple driving after revocation convictions; and, at the time of the triggering offense his BAC was.256. Therefore it was not error for the trial court to deny the defendant's request for an extended proportionality review. 2. SUFFICIENCY OF EVIDENCE People v. Strock, P.3d, 2010 WL 3259736 (Colo App. Aug, 19, 2010) Reviewing the sufficiency of the evidence of habitual criminal counts, the court must determine "whether any rational trier-of-fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt." The People have the burden to prove beyond a reasonable doubt that the accused is the person named in the prior conviction. Despite the lack of fingerprints directly linked to the case number, evidence of defendant's identity was sufficient where: The mittimus contained defendant's DOC inmate number. Certified trial court records stated that a person with defendant's name and birth date was convicted of the offense. A DOC official testified that the photograph of the person convicted in that case bore a "striking resemblance"' to defendant. A fingerprint card associated with another case contained -defendant's DOC inmate number, name; and birth date. K. MANDATORY SENTENCES People v. Wylie, P.3d, 2010 WL 3431876 (Colo. App. Sept. 2, 2010) Second-degree assault - in custody - bodily fluids - Defendant was properly subject to the mandatory sentencing aggravator in 18-1.3-401(8)(a)(IV), because he was "under confinement... in prison... at the time of the commission of a felony" even though the offense also required him to be "in custody." The court distinguished People v. Andrews, 871 P.2d 1199 (Colo. 1994) (addressing escape as not being an aggravator), and People v. Willcoxon, 80 P.3d 817 (Colo. App. 2002), because the statute at issue here had no mandatory consecutive sentencing provision that would supersede the "in custody" mandatory aggravator. Therefore, the trial court correctly applied an aggravated sentence in this case because defendant was incarcerated at the time of the commission of the felony. See C.R.S., 18-1.3-401(8)(a)(IV), which mandates a sentence from the midpoint presumptive to twice the maximum presumptive range. L. EQUAL PROTECTION Page 49 of 57
People v. Wylie, P.3d, 2010 WL 3431876 (Colo. App. Sept. 2, 2010) The court rejected defendant's equal protection challenge to 18-3-203(f.5) - finding that it did not result in a greater penalty (than subsection (f) involving physical force assault) for less serious criminal conduct. Assault with bodily fluids is an offense that is serious and capable of inflicting significant harm. M. PRE-SENTENCE CONFINEMENT CREDIT People v. Smith, P.3d, 2010 WL 3431877 (Colo. App. Sept. 2, 2010) Defendant was convicted and sentenced to probation and 90 days jail. He had spent 89 days in jail prior to sentencing. The court awarded defendant 60 days of pre-sentence confinement credit (PSCC) instead of 89 days. COA holds that C.R.S., 18-1.3-405 mandates the award of PSCC to defendants who are sentenced to DOC, but otherwise makes it discretionary. However, if the court decides to award PSCC for county jail it must award the entire amount that defendant has served. In this case, the court abused its discretion and should have awarded the full 89 days PSCC. Because the trial court chose to exercise its discretion to give defendant credit for his presentence confinement, the court was required to ensure that defendant received full credit for his presentence confinement. VIII. POST-CONVICTION People v. Gardner, P.3d, 2010 WL 726040 (Colo. App. March 4, 2010) C.R.S. 18-4-401(4) requires all separately prosecutable thefts committed within a 6-month period to be charged as a single theft. As a result of this subsection, two of defendant s theft counts should have been consolidated into a single count, and his sentence must be reduced accordingly. People v. Zhuk, 239 P.3d 437 (Colo. Sept. 20, 2010) When calculating the ten day limit within which to file a notice of appeal (interlocutory), time computation is governed by C.A.R. 26(a), which means that the ten days does not include Saturdays, Sundays and legal holidays. Clark v. People 221 P.3d 447 (Colo. App. Nov. 12, 2009) Petition to seal records under 24-72-308. Defendant was charged with a class 2 misdemeanor traffic offense, which does not permit sealing. He later pled guilty to False Reporting to Authorities in exchange for dismissal of the class 2 traffic offense. This resulted in a suspension of his securities brokerage license. The prosecution and defendant stipulated to a withdrawal of the plea and a dismissal of the case. Defendant petitioned to seal his records. The prosecution Page 50 of 57
initially stipulated to sealing. The trial court and COA concluded that subsection (3)(a)(I) prevents the sealing of class 1 or class 2 misdemeanor traffic offenses under any circumstances. COA concludes that this exception to the sealing statute is to avoid inundating the courts with petitions to seal minor traffic offenses. People v. Drew, P.3d, 2010 WL 1915047 (Colo. App. May 13, 2010) Defendant pled guilty to first-degree kidnapping and conspiracy to distribute a schedule II controlled substance. His argument on appeal was that he was born Donald James Drew, and the person charged in this matter was named in capital letters as DONALD JAMES DREW. Thus, defendant argued that he was convicted as an artificial person and was denied due process. Claims so premised are patently frivolous and without merit. Therefore, the order was affirmed. Defendant was pro se on the appeal. Page 51 of 57
LEGISLATIVE UPDATE-CRIMINAL LAW 2-Prior Felony Rule HB 1338 (C.R.S. 18-1.3.201): A person convicted of a felony on or after July 1, 2010 may apply for probation, regardless of the number of prior felonies, unless the current conviction or a prior conviction is for a really bad crime (i.e., 1 st or 2 nd Degree Murder, Manslaughter, 1 st or 2 nd Degree Assault, 1 st or 2 nd Degree Kidnapping, Sexual Offense, 1 st Degree Arson, 1 st or 2 nd Degree Burglary, Robbery, aggravated Robbery, Theft from Person, Any Felony against a Child, Any Attempt or Conspiracy to commit the above crimes). Failure to Register as a Sex Offender is not counted as a sexual offense for this statute. DUI/DWAI HB 10-1347 (C.R.S. 42-4-1307): Creates enhanced penalties for DUI/DWAI offenses. Probation is a separate penalty from any jail sentence imposed for violating the law. If a person is sentenced to probation, the court shall impose a one year suspended jail sentence and no credit shall be given for the initial jail sentence imposed. The court may impose none, some or all of the suspended sentence upon violation of probation. Any imprisonment imposed... shall be imposed in a manner that promotes the person s compliance with [probation] and not merely as a punitive measure. First offense DUI, DUI per se and habitual user: No changes 5 days to 1 year jail (minimum jail can still be suspended with alcohol classes); $600 to $1000 fine; 48-96 hours UPS. First offense DWAI: No changes 2 days to 180 days jail (minimum jail can still be suspended with alcohol classes); $200 to $500 fine; 24-48 hours UPS. Second offenses DUI, DUI per se and DWAI: 10 days to 1 year jail consecutive but no more than 1 year (work release and EHM are allowed). No good time, earned time or trusty status during 10 day period. $600 to $1000 fine; 48-120 hours UPS; 2 years or more of probation, plus that 1 year of suspended jail that accompanies probation. If the second offense occurs within 5 years of a previous offense, then the court must sentence the person to jail without the benefit of sentencing alternatives (i.e., NO work release or EHM) during the 10 day minimum jail period. There are exception to this, however, if the person already has a job or schooling. Third and subsequent offenses for DUI, DUI per se and DWAI: 60 days to 1 year jail consecutive but no more than 1 year. No work release or EHM, except that a person may apply for work/educational release if they already have a job or school. No good time, earned time or trusty status during 60 day period. $600 to $1500 fine; 48-120 hours UPS; 2 years or more of probation, plus that 1 year of suspended jail that accompanies probation. Interlock ignition devices: The court may impose use of the interlock as a condition of probation and courts are encouraged to require the person to use an approved ignition interlock device. Page 52 of 57
Drug Reform HB 10-1352 (C.R.S., 18-18-404 Use of Controlled Substance): Now a class 2 misdemeanor. The use plea suspended sentence and treatment has been eliminated. (C.R.S., 18-18-403.5 Possession of Controlled Substance): Possession now has its own section. Generally speaking, it is broken down into possession of meth, possession of schedule I and II and possession of schedule III and IV. Methamphetamines: 2 grams or less = class 6 felony; more than 2 grams = class 4 felony. Schedule I or II: 4 grams or less = class 6 felony; more than 4 grams = class 4 felony. Schedule III, IV or V: any quantity = class 1 misdemeanor. (C.R.S., 18-18-405 Distribution to minor): Distribution to minor and there is at least a 2 year age difference is a class 3 felony. Minimum mandatory of 4 years DOC. (C.R.S., 18-18-406 Marijuana): New schedule of weights and penalties. New provisions for distribution to minors. 2 ounces or less = class 2 petty offense 2 to 6 ounces = class 2 misdemeanor 6 to 12 ounces (or up to 3 ounces of marijuana concentrate/hashish) = class 1 misdemeanor More than 12 ounces (or more than 3 ounces of MJ concentrate) = class 6 felony. Transferring 2 ounces or less, for no consideration, is not a sale and shall be a class 2 petty offense. Distribution, Sale and Possession with Intent is a class 5 felony for 5 pounds or less (1 pound or less of MJ concentrate); Class 4 felony for 5 to 100 pounds (1 to 100 pounds of MJ concentrate); Class 3 felony for more than 100 pounds. Class 3 felony if conviction is for a second offense. Any sale or transfer of 2 ounces to 5 pounds, for consideration, to any person between the ages of 15 and 17 commits a class 4 felony. $5000 fine accompanies the sentence. Any sale or transfer of 1 pound or less, with or without consideration, to any minor commits a class 4 felony. $5000 fine accompanies the sentence. Any sale or transfer of 5 pounds or more (1 pound or more of MJ concentrate) to a minor of 15-17 years commits a class 3 felony. Any sale or transfer to any person under 15 commits a class 3 felony and is subject to a minimum mandatory sentence of 4 years DOC. Allowing marijuana to be processed or manufactured on land you own or control is a class 4 felony. Class 3 felony for a second offense. Cultivation is a class 1 misdemeanor for 6 or fewer plants; class 5 felony for 7 to 29 plants; class 4 felony for 30 or more plants. Medical marijuana patients are excepted by Article XVIII, section 14 of the Constitution. (C.R.S., 18-18-407 Special offender): This law was modified as follows: Importation into state qualifies for 4 grams or more of schedule I or II controlled substance (2 grams or more for meth). Distribution, possession or importation of marijuana is still 100 pounds. Use or possession of deadly weapon on his or her person or within his or her immediate reach.. Page 53 of 57
.at the time of the commission of a violation OR the defendant or a confederate possessed a firearm... to which the defendant or confederate had access in a manner that posed a risk to others or in a vehicle the defendant was occupying during the commission of a violation. (C.R.S., 18-18-415 Fraud and deceit) Fraud and deceit to obtain controlled substances is modified to a class 6 felony. There is no longer an enhancement if it is a second or greater violation. (C.R.S., 18-19-103) Drug offender surcharges has been increased as follows: Class 4 felony = $2000 Class 5 felony = $1500 Class 6 felony = $1250 Class 1 misdemeanor = $1000 Class 2 misdemeanor = $600 Class 3 misdemeanor = $300 HB 10-1373 (C.R.S., 18-8-208.1 Attempted Escape): Attempted Escape is normally a class 4 felony for which any sentence runs consecutive. However, if a person is serving a direct sentence to community correction or is on intensive supervised parole and attempts to escape from such confinement, it is a class 5 felony AND the sentence may run either consecutively or concurrently, in the court s discretion. (C.R.S., 18-8-209 Concurrent and consecutive sentences): Formerly all escape type convictions had to be consecutive sentences. Now the sentence may be concurrent or consecutive, if the person was serving a direct sentence to community corrections or was on intensive supervised parole. Thus, an actual escape could qualify for concurrent sentencing. HB 10-1023 (C.R.S., 8-2-201 Employer liability under fellow servant rule): Generally speaking, information regarding the criminal history of an employee may not be introduced as evidence in a civil action against an employer or its agents that is based on the conduct of an employee or former employee, if the act by the employee does not bear a direct relationship to the facts underlying the cause of action, or the record was sealed, or did not result in a conviction, or was a successfully completed deferred judgment. HB 10-1090 (C.R.S., 42-2-138 Driving Under Restraint): No more mandatory jail for DURnon-alcohol offense. Jail is now zero to 6 months. Effective August 11, 2010. HB 10-1201 (C.R.S., 16-3-310 Consent to search): Prior to conducting a consensual search of a person, their effects or a vehicle, a peace officer shall advise the person that he or she is being asked to voluntarily consent to a search and that the person has the right to refuse the request to search. Consent may be obtained in writing or verbally. Strict compliance with the above verbiage is not required, substantial compliance is sufficient. If a defendant moves to suppress, the court shall consider the failure to comply with this statute as a factor in determining the voluntariness to consent. This does not apply to an otherwise valid search (e.g., pat down for weapons, search warrant, search incident to arrest). Page 54 of 57
HB 10-1334 (C.R.S., 18-7-301 Public Indecency and C.R.S., 18-7-302 Indecent Exposure): Public indecency is modified to eliminate deviate acts of public sexual intercourse and to eliminate public masturbuation; lewd exposure is redefined; and, exposure of genitals in an alarming manner is now criminalized and made a class 1 misdemeanor. Additionally, the exposure of genitals subsection is now a sex offense and unlawful sexual behavior that will require registration and treatment. Indecent exposure is modified to be equally applicable to both genders (the flasher statute now applies to women), and public and alarming masturbation is now classified as indecent exposure. Indecent exposure remains a sex offense and unlawful sexual behavior that will require registration and treatment. HB 10-1360 (C.R.S., 17-2-103 Arrest of parolees-revocation proceedings): Technical violations of parole for class 4 felony non-violent, non-sexual offenders may result in a revocation of parole and sentence of up to 180 days in a community corrections-type facility (specified as community return-to-custody facilities). Technical violations of parole for non-crime of violence offenders may result in revocation of parole and sentence of up to 90 days incarceration for below high risk inmates and up to 180 days for high risk or greater inmates. The inmate will be assessed for risk based upon a research-based risk assessment instrument approved by the DOC and the State Board of Parole. If the Parole Board determines a parolee is in need of treatment (drug, alcohol, mental health), the Board may modify parole to include participation in outpatient treatment and placement in residential treatment. HB 10-1413 (C.R.S., 19-2-517 Direct Filing): The direct filing statute now has additional limitations on the circumstances under which juveniles can be direct filed into adult District Court, and there is a 14-day consultation period during which the DA s office is encouraged to allow the defense an opportunity to provide reasons and/or documentation as to why a juvenile should not be direct filed. The statute sets forth criteria for the DA to consider when making a direct file decision, but the weight for such criteria is in the DA discretion. 14 and 15 year olds may no longer be charged as an adult for any class 1 or 2 felony, but only 1 st and 2 nd Degree Murder. Juvenile of this age may still be charged as adults for class 2 felony sexual assault and any crime of violence. 14 and 15 years olds may be direct filed for a class 3 felony sex offense and SAOC, if the juvenile has a prior felony adjudication within the past 2 years, or if the juvenile is alleged to have committed any felony sex offense and is a habitual juvenile offender. The crimes for which 16 and 17 years olds may be direct filed remain essentially unchanged. The DA must file a notice of consideration of direct file in juvenile court. After the filing of such notice, the juvenile has 14 days to provide the DA with any mitigating information. The DA shall not direct file charges until the 14-day period for consideration has expired. the juvenile court shall not accept a guilty plea from the juvenile during this 14-day period, unless the DA consents. Page 55 of 57
(C.R.S., 19-2-518 Transfers): The legislature eliminated several restrictions on sentencing juvenile offenders who underwent transfer hearing to the youthful offender system. Now a juvenile who was transferred to adult district court and who pleads guilty or is convicted of a class 2 felony may go to YOS under any circumstances. See also 19-2-518(d)(I) SB 10-063 (C.R.S., 21-2-107 ADC attorney liability): Requires a complainant to file a certificate of review in order to sue the ADC attorney for negligence. Attorney does not have to file an answer until such certificate of review is filed. The AG s office will represent the attorney until such time as the certificate of review is filed. After that ADC attorney is on his or her own to defend the case. Malpractice Insurance carriers may not consider the filing of a claim against an attorney in determining premium rates, unless a certificate of review is timely filed. SB 10-128 (C.R.S., 18-3-405.6 Invasion of privacy for sexual gratification): Creates a new law prohibiting the observation or photographing of a person s intimate parts without their consent, where the victim has a reasonable expectation of privacy, and the observer does so for their own sexual gratification. Class 1 misdemeanor extraordinary risk of harm crime. Class 6 felony extraordinary risk of harm crime, if second or subsequent offense or the person observed/photographed is under 15 years of age. Subject to sex offender registration and treatment requirements. (C.R.S., 18-7-801 Criminal invasion of privacy): This law is substantially similar to the invasion of privacy for sexual gratification, except that it can be for merely photographing or observing another person s intimate parts, without consent. Sexual gratification is not required. This crime is a class 2 misdemeanor. (C.R.S., 18-9-304 Eavesdropping): No longer a felony. Now a class 1 misdemeanor. SB 10-193 (C.R.S., 17-1-113.7; 17-26-104.7; 19-2-924.7; 31-15-403 Prohibition against the use of restraints on pregnant women): Jails, prisons, private correctional facilities and detention facilities are all mandated to use the least restrictive restraints necessary when an inmate is pregnant. This requirement continues during the pregnancy and through postpartum recovery and transport to or from the correctional facility. Staff shall not use restraints of any kind on a pregnant inmate during labor and delivery of the child, but there are exceptions. If the exception applies, written documentation must be made and retained for 5 years. Under no circumstances shall staff use leg shackles or waist restraints on an inmate during labor and delivery of the child, postpartum recovery while in a medical facility, or transport to or from a medical facility for childbirth. Upon learning that an inmate is pregnant, the staff must inform her in writing in her own language of the provisions of this statute. These provisions apply to all prisons, private correctional facilities, county jails, municipaloperated jails, and juvenile detention centers. Page 56 of 57
SB 10-204 (C.R.S., 42-2-127 Suspension of license Points): Careless driving resulting in death will now cost 12 points and the loss of driver s license. HB 10-1104 (C.R.S., 13-3-101 Creation of Veterans Treatment Courts): The Chief Judge of a Judicial District is empowered to create a court and treatment program for the treatment of veterans and members of the military. HB 10-1215 (C.R.S., 16-4-109 Return of bonds; use for court costs): If the defendant posted a cash bond, the court may apply the bond toward court costs, fees, fines, restitution or surcharges. If someone other than the defendant posted the cash bond, the court may apply the bond toward such costs, if the depositor agrees in writing to the use of the money for such purpose. HB 10-1218 (C.R.S., 18-6-803.7 Central registry of protection orders): Modified to provide that the registry shall also contain an indication as to whether the conditions of the protection order are also conditions of a bail bond for a felony charge. Page 57 of 57
Seventh Annual 19 th Judicial District Bench-Bar Committee Nuts & Bolts CLE Presents DUI BASICS & TIPS December 10, 2010 Presented by: Jerry Roselle, Esq.
DUI BASICS and TIPS Jerry Roselle www.jerryroselle.com jerry@jerryroselle.com 970-224-1111 Expectations Today. How you and I will succeed today. We will generate answers to these three questions about Criminal Defense #1. What are you really doing here? #2. How do you actively manage a case? The 3 Essential Actions. #3. Where do you find help? Question #1. What are you really doing here? 1. It s all about power 2. Your client s life, time and money are at stake 3. The Bill of Protections 4. The Powerful Protector Question #2. How do you actively manage a case? 1. Who is hurting 2. Peace at first sight 3. The Price of Your Energy a. the fee (set it; earn it) b. written fee agreement c. informed consent Question #2. The 3 Essential Actions 1. Investigation a. your goal=out-know everyone else b. client side fact gathering 1) from client 2) from witnesses 3) from records 4) other sources
c. government-side fact gathering 1) discovery from DA 2) CDPHE a. lit packs b. COBRA 3) other government record keepers a. 911 b. CAD/dispatch logs c. Roadsides video d. Cell and text records e. Fire department f. Paramedics/first responders g. Others 2. Negotiation a. out-know b. Pareto Principle In 80% of the cases at pretrial, one side knows only 20% of the facts c. know yourself d. know your adversary e. learn basic negotiation tools f. keep an eye on your future (cases, clients, courts, conflicts) g. TRIAL 3. Litigation a. basic pleadings b. bond awareness 1) type 2) travel 3) supervision c. Courts 1) judge 2) clerks 3) filing 4) scheduling 5) deadlines d. Motions Evidentiary/Constitutional e. Trial Question #3. Where do you find help? 1. Observe a. hearings b. trials c. sentencings
2. Read a. DUI Benchbook (CBA) b. Criminal Law Statutes (CDAC) c. Vehicles and Traffic, Title 42 (Bradford) d. Colorado Practice Series, Vol. 14 and 15 (Professor Dieter; West) e. A good textbook like Defending Drunk Drivers 3. Join a. CCDB b. NACDL c. NCDC d. Local defense bar 4. Ask a. mentors b. experts c. CCDB Listserve 5. Strive a. for professional excellence b. for personal growth c. to find the power in you. You want to play music for a long time? You want to be energetic and do the job of a 25-year-old when you re 50? You can. But it takes discipline, a bit of vanity, and a bit of scientific study. Sting Some men fear wars, some wars fear men. Navy Seals Slogan Trample the weak, hurdle the dead. Alexander the Great
Seventh Annual 19 th Judicial District Bench-Bar Committee Nuts & Bolts CLE Presents FAMILY LAW UPDATE December 10, 2010 Presented by: Honorable Julie Hoskins, District Court Judge Amy Antommaria, Esq.
Family Law Update 2009-2010 by Barbara Jensen, Esq., and Tina Patierno, Esq. Materials by Ronald D. Litvak, Esq., & Courtney J. Leathers, Esq. Litvak Litvak Mehrtens & Epstein P.C. 1900 Grant Street, Suite 500 Denver, CO 80203-4305 (303) 837-0757 www.familyatty.com Opinions Current Through: 10/21/2010
TABLE OF CONTENTS (Published Cases October 15, 2009 October 21, 2010) 1. SEPARATION AND OTHER MARITAL AGREEMENTS...4 No 2010 Cases to date. 2. DISPOSITION OF PROPERTY... 4 A. VALUATION... 4 In re the Marriage of Thornhill, 232 P.3d 782 (Colo. June 1, 2010)... 4 B. DEFINING PROPERTY... 5 No 2010 Cases to date. C. DIVIDING PROPERTY... 5 No 2010 Cases to date. D. ENFORCEMENT OF ORDERS... 5 No 2010 Cases to date. 3. MAINTENANCE..5 No 2010 Cases to date. 4. CHILD SUPPORT.6 A. CHILD SUPPORT DETERMINATION/MODIFICATION...6 In re the Parental Responsibilities of M.G.C.-G, Cabello and Gomez, 228 P.3d 271 (Colo. App. Feb. 18, 2010)..... 6 In re the Marriage of White and Martin, No. 09CA0596, 2010 WL 2306113 (Colo. App. June 10, 2010).......7 In re the Marriage of Connerton and Nevin, No. 09CA2290, 2010 WL 3584282 (Colo. App. Sept. 16, 2010).......... 8 In re the Marriage of Hein and Farrer, No. 09CA2290 (Colo. App. Sept. 30, 2010).....9 B. ENFORCEMENT OF CHILD SUPPORT ORDERS... 10 No 2010 Cases to date. 5. ATTORNEY S FEES... 10 In re the Marriage of Gallegos and Baca-Gallegos, 09CA2015, 2010 WL 3584283 (Colo. App. Sept. 16, 2010)... 10 6. ALLOCATION OF PARENTAL RESPONSIBILITIES... 11 In re the Parental Responsibilities of Reese, 227 P.3d 900 (Colo. App. Feb. 4, 2010)... 11 In re the Marriage of Parr and Lyman, No. 09CA0854, 2010 WL 2105957 (Colo. App. May 27, 2010)... 12 In re the Parental Responsibilities of A.M. and Concerning Goebel, No. 09CA1430, 2010 WL 3584398 (Colo. App. Sept. 16, 2010)... 13 Page 2
7. GUARDIANS, CONSERVATORS, SPECIAL ADVOCATES, AND CHILD REPRESENTATIVES... 15 In the Matter of D.I.S., and Sidman v. Sidman, No. 08CA2454, 2009 WL 3465724 (Colo. App. Oct. 29, 2009); cert. granted (Nov. 9, 2009).15 In the Marriage of Kanefsky and Concerning Fremerman and Fremerman, No. 09CA0690, 2010 WL 3432208 (Colo. App. Sept. 2, 2010)...16 8. PROCEDURAL AND EVIDENTIARY MATTERS... 17 In re the Marriage of Roberts, Schelp, and Barnett, 228 P.3d 151 (Colo. Mar. 22, 2010)... 17 In re the Parental Responsibilities Concerning L.S., and Concerning McNamara and Spotanski, 226 P.3d 1227 (Colo. App. Oct. 15, 2009) cert. granted (Mar. 15, 2010)... 18 In re the Marriage of Weis, 232 P.3d 789 (Colo. June 7, 2010)... 19 In re the Marriage of Stockman, No. 10CA0125, 2010 WL 2853758 (Colo. App. July 22, 2010)... 21 9. PROFESSIONAL NEGLIGENCE... 21 No 2010 Cases to date. 10. TRUSTS & ESTATES... 21 No 2010 Cases to date. 11. INCOME TAX MATTERS... 21 No 2010 Cases to date. 12. PROTECTION ORDERS... 22 No 2010 Cases to date. 13. COMMON LAW MARRIAGE... 22 No 2010 Cases to date. 14. DOMESTIC VIOLENCE... 22 People v. Disher, 224 P.3d 254 (Colo. Feb. 16, 2010)... 22 15. ANNULMENT... 23 In re the Marriage of Farr, 228 P.3d 267 (Colo. App. Feb. 4, 2010)... 23 16. PATERNITY... 24 In re the Parental Responsibilities of A.D, and Concerning Rueda, No. 09CA0756, 2010 WL 1238841 (Colo. App. Apr. 1, 2010) cert. denied (Colo. Aug. 30, 2010)... 24 Page 3
1. SEPARATION AND OTHER MARITAL AGREEMENTS No 2010 Cases to date. 2. DISPOSITION OF PROPERTY A. VALUATION In re the Marriage of Thornhill, 232 P.3d 782 (Colo. June 1, 2010) Trial Court: Judge Flynn, Mesa County; Court of Appeals Opinion (200 P.3d 1083) by Judge Terry (Rothenberg and Hawthorne JJ. concur); Supreme Court Opinion by Justice Eid On February 17, 2009, the Supreme Court denied the petition for writ of certiorari, but granted the cross-petition for writ of certiorari regarding: (1) Whether the appellate court erred by refusing to extend the holding of Pueblo Bancorporation v. Lindoe, Inc., 63 P.3d 353 (Colo. 2003), to divorce proceedings, thereby allowing the application of a marketability discount in valuing a closely held corporation operated as a going concern at the time of the parties divorce proceeding; and (2) Whether the court of appeals erred by reversing the district court s ruling, which upheld the magistrate s temporary maintenance award to wife, when it failed to consider the particular facts and circumstances of the parties marriage within section 14-10-113(3) s threshold requirements of reasonable needs and appropriate employment. The trial court held that the separation agreement, which subjected Husband s business interest to a thirty-three percent marketability discount was enforceable, and ordered temporary maintenance for Wife based upon the increased standard of living of the parties late in their marriage. The Court of Appeals found the separation agreement to be unconscionable, but rejected Wife s argument that the holding of Pueblo should be extended to dissolution of marriage cases, thus prohibiting marketability discounts when valuing interests in closely held businesses for property division. The Court of Appeals reversed the award of temporary maintenance, finding that the magistrate erred by considering the parties standard of living when determining whether Wife was entitled to temporary maintenance under C.R.S. 14-10-114(3), rather than examining the standard of living after the threshold for entitlement to temporary maintenance was met. Under the holding of Pueblo, marketability discounts were prohibited in the context of a corporation buying out a dissenting minority shareholder. The Supreme Court found that extending this holding to dissolution cases is inappropriate because the limiting statutory language examined in Pueblo, fair value, is not included in the property division statute applicable in dissolution cases. In fact, C.R.S. 14-10-113(1) provides the trial court with broad discretion to divide property as the court deems just after Page 4
considering all relevant factors. Thus, the Supreme Court held that there is no per se rule against applying marketability discounts to interests in closely held businesses in dissolution of marriage cases. Trial courts have discretion, on a case-by-case basis, to determine whether to apply a marketability discount. Where the parties combined annual gross income is greater than $75,000, a party seeking maintenance must meet a two-pronged test. First, the court must find a spouse lacks sufficient property to provide for his/her reasonable needs and is unable to support oneself through appropriate employment. C.R.S. 14-10-114(3). The Supreme Court found that In re the Marriage of Olar, 747 P.2d 676 (Colo. 1987), established that reasonable needs and appropriate employment are to be assessed within the broader context of the specific facts and circumstances of the parties and their marriage. In effect, examining the standard of living during the marriage is in fact an appropriate and even a necessary starting point to determining reasonable needs and appropriate employment. Thus, the Supreme Court held that the threshold determination of whether a party is entitled to temporary maintenance under C.R.S. 14-10-114(3) contemplates that the court will consider the circumstances of the marriage, including the parties standard of living. No 2010 Cases to date. No 2010 Cases to date. No 2010 Cases to date. B. DEFINING PROPERTY C. DIVIDING PROPERTY D. ENFORCEMENT OF ORDERS No 2010 Cases to date. 3. MAINTENANCE 4. CHILD SUPPORT A. CHILD SUPPORT DETERMINATION/ MODIFICATION Page 5
In re the Parental Responsibilities of M.G.C.-G., Cabello and Gomez, 228 P.3d 271 (Colo. App. Feb. 18, 2010) Trial Court: Judge Lowry, El Paso County; Opinion by Judge Casebolt (Gabriel and Booras, JJ. concur) Mother appeals the court s order denying her motion to modify child support. In 2003, Mother filed a motion to relocate with the child. Father objected. Prior to a hearing on this matter, the parties agreed that Father would withdraw his objection and allow Mother to move, and that Mother would accept child support of $500 per month from Father. This agreement became an order of the court. Four years after the relocation, Mother filed a motion to modify child support. Father objected, stating that the 2003 agreement was entered in exchange for mother s relocation and therefore modification should not be permitted. The trial court calculated and held that child support would have been between $625-$640 in 2003, had the parties not reached their own agreement. Pursuant to Mother s current motion to modify child support, child support would have been $650. Therefore, the trial court denied the motion to modify as there was no evidence of a ten percent change in child support from what [child support] would have been on October 29 th, 2003 to today. Pursuant to C.R.S. 14-10-122(1)(a), modification of an existing child support order may occur only upon a showing of changed circumstances that are substantial and continuing. A change is not substantial if it results in less than a ten percent change in the amount of [child] support due per month. C.R.S. 14-10-122(1)(b). Both of these provisions apply to orders currently in effect. At the time the motion to modify child support was considered, the only order currently in effect required Father to pay $500 in child support. As such, the trial court s denial of Mother s motion to modify is reversed and remanded. Upon remand, the court of appeals reminded the trial court that it may consider the terms of the 2003 agreement between the parties in determining whether any deviation from the guidelines is warranted, even though there is a rebuttable presumption that a modification of child support must be granted when there is more than a ten percent change in the amount due. In re the Marriage of White and Martin, No. 09CA0596, 2010 WL 2306113 (Colo. App. June 10, 2010) Trial Court: Judge Grohs, El Paso County; Opinion by Judge Carparelli (Bernard, J. concurs and Loeb, J. specially concurs) In this post-decree case, Father appeals an order modifying child support. At dissolution, the child resided primarily with Mother and Father paid child support. Then in June 2007, the parties agreed that the child would reside primarily with Father, and that neither parent would pay child support, so long as Mother continued to have overnight parenting time. However, in August 2008, Father filed a motion to modify child support, asking that Mother pay child support, retroactive back to the date the child began residing with him in accordance with C.R.S. 14-10-122(5), and In re the Page 6
Marriage of Emerson, 77 P.3d 923 (Colo. App. 2003). The trial court ordered Mother to pay child support, retroactive back to the date of filing the motion (August 2008), not the date the child began residing with Father (July 2007). C.R.S. 14-10-122(1)(a), (1)(c), and (1)(d) each refer to the general rule, that child support may be modified only as to installments accruing after the filing of a motion for modification. C.R.S. 14-10-122(5) provides that when a mutually agreed upon change of physical care occurs, the provisions of child support of the obligor under the existing child support order will be modified as of the date when physical care was changed. The Court of Appeals noted that the statute specifically limited retroactive modification to child support payable by the obligor, and that the statute is plain, clear and not ambiguous. When C.R.S. 14-10-122(5) was first added in 1991, it provided that [w]hen a voluntary change of physical custody occurs, the provisions for support will be modified as of the date when physical custody was changed. Within months of In re the Marriage of Pickering, 967 P.2d 164 (Colo. App. 1997), the legislature added, the provisions of child support of the obligor under the existing child support order to C.R.S. 14-10-122(5). Additionally, references of the newly amended C.R.S. 14-10-122(5) were added to C.R.S. 14-10-122(1)(a), (1)(c) and (1)(d), thus further establishing C.R.S. 14-10-122(5) as the exception. Then, five years later, the Court of Appeals held that the burden of support, along with the identity of the obligor, shifted when the children changed residences, thus child support could be modified with regard to the parent who was not the obligor under the existing order as of the date the physical care changed. Emerson, 77 P.3d at 926. The Court of Appeals agreed with Father s argument that when the parties mutually agreed to change physical care, Father was the obligor under the existing child support order. Therefore the court could properly modify his child support obligation retroactive back to the date of the change of physical care under the exception of C.R.S. 14-10-122(5). Thus Mother does not receive a windfall of child support when she no longer had physical care. However, since Mother was not an obligor under that child support order, the general rule under C.R.S. 14-10-122(1) applied, and her child support obligation was modified back to the date of filing the motion. The Court held that Father has the right and choice to file or postpone the filing of his motion to modify child support. The Court of Appeals declined to apply Emerson because it did not find the language of the statute to be ambiguous or unclear. In his concurrence, Judge Loeb stated that it was a fair reading of the record that the trial court concluded that mother became the obligor when the physical care changed. But he also stated that it was within the discretion of the trial court to find that mother s child support obligation would be zero from the date of change of physical care to the date Father filed his motion. Judge Loeb provided that since the two divisions had conflicting conclusions regarding the interpretation of C.R.S. 14-10-122(5), it would be appropriate for the General Assembly or the Supreme Court to resolve the conflict. Page 7
In re the Marriage of Connerton and Nevin, No. 09CA2290, 2010 WL 3584282 (Colo. App. Sept. 16, 2010) Trial Court: Judge Dubois, El Paso County; Opinion by Judge Booras (Webb and Miller, JJ. concurs) In this post-decree case, Mother appeals the trial court s order modifying child support and imputing income to her based upon a finding that she was voluntarily unemployed. Mother sought to modify the current child support, based upon her receipt of maintenance ending. Father argued that Mother was a licensed real estate agent and emergency medical technician (EMT) who was voluntarily unemployed. The trial court held that Mother had substantial job skills and imputed income to Mother, based upon full time employment as an EMT, held that her educational goal of becoming a nurse did not meet the standards of reasonableness because the program would take 4 ½ years and she did not pursue her degree while receiving maintenance. Both parents have an obligation to support their children. A court may calculate child support based upon a parties potential income, if that parent is voluntarily unemployed or underemployed. C.R.S. 14-10-115(5)(b)(I). A court may not deem a parent voluntarily unemployed or underemployed if (1) the parent is enrolled in an educational program that is reasonably intended to result in a degree within a reasonable period of time and that will result in a higher income, (2) the educational program is a good faith career choice that is not intended to deprive the child of support, and (3) the parent s pursuit of the career does not unreasonably reduce the support available to the child. C.R.S. 14-10-115(5)(b)(III)(C). The trial court must make all of these findings. In this case, the trial court did not find that Mother s plan was not reasonably intended to result in a degree, was not a good faith career choice, or that the plan was intended to deprive the child of support or unreasonably reduce the support available to the child. The Court of Appeals remanded the case, as the trial court did not make findings as to all parts of the statute. Since remand may raise other issues, the Court of Appeals reiterated that the trial court may impute income at the annual income that parent previously earned. While the court may consider whether employment is available, there is no burden to prove a particular job exists. The court may consider only childcare expenses that are actually incurred, as it would be patently unfair to include child care expenses in the child support calculation that were speculative. Finally, Mother argued that the court erred in denying her request for attorney fees pursuant to C.R.S. 14-10-119. When seeking fees under C.R.S. 14-10-119, a party must present evidence of the reasonableness of the fees at the time of the hearing on fees, including facts such as the billing rate, the number of hours billed, and the reasonableness and necessity of the hours billed. Since this evidence was not presented, the trial court properly denied Mother s request for fees. Page 8
In re the Marriage of Hein and Farrer, No. 09CA2290 (Colo. App. Sept. 30, 2010) Trial Court: Judge Dubois, El Paso County; Opinion by Judge Booras (Webb and Miller, JJ. concurs) In this post-decree case, El Paso County Child Support Enforcement (CSE) appeals an order modifying child support, alleging that the trial court abused its discretion for deviating from the child support guidelines. In the dissolution, Mother was ordered to pay child support of $173 per month. A year later, paternal grandparents intervened and sought parental responsibilities of the children. The children began living with the paternal grandparents, who received public assistance benefits to pay for a portion of the children s daycare. CSE filed to modify child support. At the hearing, the trial court found that Mother s presumptive child support was $399 per month. But, because an order of child support exceeding $245 per month would cause grandparents to lose their public assistance benefits, the court deviated from the guidelines and modified the child support to $240 per month. The court may deviate from the child support guidelines if the presumptive amount of child support would be inequitable, unjust or inappropriate. C.R.S. 14-10-115(8)(e). The party seeking deviation has the burden to show the deviation is both reasonable and necessary. The court must make findings specifying both the presumptive amount of child support and the reasons for the deviation. C.R.S. 14-10-115(8)(e). A court does not abuse its discretion by refusing to deviate, even if the presumptive amount would end eligibility for public assistance. Other states have held that child support orders should not be structured to ensure recipients remain eligible for public assistance. Child support is income to the child; therefore any public assistance eligibility must be determined after child support income is set. The Court of Appeals held that the trial court abused its discretion by deviating from the guidelines solely to protect grandparents eligibility for public assistance benefits, and remanded the case. B. ENFORCEMENT OF CHILD SUPPORT ORDERS No 2010 Cases to date. Page 9
5. ATTORNEY S FEES In re the Marriage of Gallegos and Baca-Gallegos, 09CA2015, 2010 WL 3584283 (Colo. App. Sept. 16, 2010) Trial Court: Judge Goodbee, Adams County; Opinion by Judge Davidson (Plank and Ney, JJ. concur) Mother appealed from the trial court s order denying her request for attorney fees, which she incurred when defending against an unsuccessful petition for grandparent visitation. Whether attorney fees are recoverable against grandparents under C.R.S. 14-10-119 or C.R.S. 19-1-117(3) in grandparent visitation cases is a question of first impression in Colorado. Grandparents may seek reasonable grandparent visitation, upon a finding that it would be in the best interests of the child, by initiating a new action or intervening in an existing dissolution case. C.R.S. 19-1-117. Only C.R.S. 19-1-117(3) addresses attorney fees: No grandparent may file an affidavit seeking an order granting grandchild visitation rights more than once every two years absent a showing of good cause. If the court finds there is good cause to file more than one such affidavit, it shall allow such additional affidavits to be filed and shall consider it. The court may order reasonable attorney fees to the prevailing party. The Court of Appeals found that this provision limits attorney fees to requests made after the initial visitation determination. Had the legislature intended this provision to apply to initial and subsequent requests for grandparent visitation, it would have expressly stated this. Inclusion of the attorney fees provision in this section was meant to protect parents and children from repetitive litigation. Awards of attorney fees under C.R.S. 14-10-119 are used to apportion fees equitably between spouses based upon their financial positions. This statute does apply in nonparent allocation of parental responsibility cases, and child support proceedings. The Court of Appeals held that the grandparent s statutory basis for their visitation request was made under C.R.S. 19-1-117 and they did not contemplate an award of parental responsibilities. Therefore Mother did not incur attorney fees under an article 10 of title 14 case and could not be awarded fees under C.R.S. 14-10-119, despite the fact grandparents intervened in a dissolution of marriage case. 6. ALLOCATION OF PARENTAL RESPONSIBLITIES Page 10
In re the Parental Responsibilities of Reese, 227 P.3d 900 (Colo. App. Feb. 4, 2010) Trial Court: Judge Goodbee, Adams County; Opinion by Judge Carparelli (Casebolt and Richman concur) Adoptive mother appeals from an order awarding sole decision-making authority and majority parenting time to petitioners. Mother began caring for E.B.H., the biological child of her husband s cousin, soon after the child was born. Petitioners offered to assist her in caring for the child. Petitioners care gradually increased until the child was living with them full time and had only minimal contact with mother. Nonetheless, Mother adopted the child. Petitioners eventually filed a petition for allocation of parental responsibilities pursuant to C.R.S. 14-10-123. The trial court found it was in the child s best interest to grant Petitioners sole decision-making responsibility and nearly all of the parenting time. C.R.S 14-10-123 permits a non-parent to petition for allocation of parental responsibilities. When a non-parent has standing under C.R.S 14-10-123, the court has statutory authority to allocate parental responsibilities based on the best interests of the child. Nevertheless, the Supreme Court has consistently held that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Troxel v. Granville, 530 U.S. 57 (2000). The Court found that the special factors and special weight requirements of Troxel are equally applicable in the context of non-parent petitions under C.R.S. 14-10-123. The Court concluded that when a non-parent seeks an allocation of parental responsibilities contrary to the wishes of a parent, the court may not allocate parental responsibilities to the non-parent unless it complies with the Troxel requirement to accord special weight to the parent s determination of the best interests of the child. To do so, a court must consider all relevant factors including those listed in C.R.S. 14-10-124(1.5)(a) and (b). In addition, the court may allocate parental responsibilities to the non-parent only if it enters findings based on clear and convincing proof that the best interests of the child justify such an allocation. The Court held that explicit application of the clear and convincing standard of proof is necessary to accord special weight to the parent s determination of the child s best interests and therefore, a parent s liberty interest in the care, custody, and control of his or her child is not infringed when the parent s determination regarding the best interests of the child is overcome by clear and convincing proof of relevant factors and the court s determination of the best interests of the child. Further, the Court rejected Adoptive Mother s contention that in accordance with Ciesluk, in the absence of demonstrated harm to the child, the best interests of the child standard is insufficient to serve as a compelling state interest overruling the parents fundamental rights. Ciesluk, 113 P.3d 135 (Colo. 2005). Page 11
Although the court found that the Petitioners had more than established by clear and convincing evidence as a matter of fact that they are psychological parents to this child, this finding was not sufficient to gain parental rights. Instead, this finding only determined that the Petitioners had standing to seek parental responsibilities under the statute. A court must make its allocation of parental responsibilities based on clear and convincing evidence. The trial court failed to do so. The Court remanded the case for a determination of whether the Petitioners met their burden of proving by clear and convincing evidence that allocation of parental responsibilities to them was in the best interests of the child. In re the Marriage of Parr and Lyman, No. 09CA0854, 2010 WL 2105957 (Colo. App. May 27, 2010) Trial Court: Judge Bromley, El Paso County; Opinion by Judge Taubman (Hawthorne and Furman, JJ. concur) Father appeals the trial court s order affirming the magistrate s order and adding additional restrictions to his parenting time. The parties entered into a parenting plan that provided Father s parenting time would gradually increase from short supervised visits to unsupervised alternating weekends, and that Father s visits should be governed by ongoing UA s [urinalysis tests] and drug screenings to demonstrate that he does not return to marijuana use. The day the parenting plan was incorporated into the decree by the court, Father was approved for listing on the State of Colorado Medical Marijuana Registry. At no time had Father reported that he was seeking this listing. Father filed a motion to waive the urinalysis testing in light of his approved medical marijuana use. The trial court found that Father voluntarily submitted to the terms of the parenting time plan, thus the plan should remain. Father petitioned for review of the magistrate s order on the basis that the testing requirement was contrary to his constitutional right to use medical marijuana (Colorado Constitution, article XVIII, section 14); Father s motion was denied one year later. In affirming the magistrate s Order, the court also added additional provisions, that Father parenting time would be supervised until he demonstrates by clear and convincing evidence that his use of medical marijuana is not detrimental to the child, and that he may petition for unsupervised time after he provides a clean hair follicle test. Mother filed a Motion to Restrict Father s parenting time for not providing proof of clean tests; no hearing was held. Husband contends that the court erred by adding additional restrictions to his parenting time. Pursuant to C.R.S. 14-10-129(1)(a)(I), the court may make orders or modifications to parenting time if it would serve the best interests of the child. But the court shall not restrict a parent s parenting time unless the parenting time would endanger the child s physical health or significantly impair the child s emotional development. The Court of Appeals found that the trial court s additional Order prohibiting marijuana use was not a restriction, requiring a finding of endangerment, as it was consistent with the Parenting Plan that Father not use marijuana. But the trial court did err when it returned Father s time to supervised because there was no finding that absent the restriction, the child would have been physically endangered or her Page 12
emotional development would have been significantly impaired. The Court of Appeals found that this was a restriction, and that the trial court did not take additional evidence, made no finding of endangerment, or a finding that Father s use of medical marijuana threatened the child s physical or emotional safety. Thus the restriction was improper and vacated. For the same reasons, the court vacated the requirement for hair follicle testing and petitioning for unsupervised visits. The Court specifically did not address whether medical marijuana use may constitute endangerment, or Father s argument that he had a constitutional right to use medical marijuana. Concurring, Judge Furman reiterated that the existing parenting plan remains in effect, but was concerned that Mother had filed a motion to restrict parenting time and was not afforded a hearing. In re the Parental Responsibilities of A.M. and Concerning Goebel, No. 09CA1430, 2010 WL 3584398 (Colo. App. Sept. 16, 2010) Trial Court: Judge Martinez, El Paso County; Opinion by Judge Casebolt (Furman and Terry, JJ. concur) In this parental responsibilities action, paternal biological Grandparents appeal the trial court s order in favor of Mother and Adoptive Father, terminating grandparents visitation. In 2005, Mother was awarded sole residential parental allocation and sole decision-making. Father was not awarded any parenting time, as he was then incarcerated. Mother was voluntarily permitting paternal biological grandparents visitation. In 2008, Grandparents sought and were granted an order for grandparent visitation. In 2009, Mother moved to terminate the grandparent visitation, on grounds that Father s parental rights had been terminated, Mother s Husband had adopted the child, and that termination of grandparent visitation would be in A.M s best interests. The issue before the court, one of first impression in Colorado, is what is the proper burden of proof and which party bears it when a parent seeks to modify or terminate grandparent visitation previously granted by the court under C.R.S. 19-1-117. Grandparents argue that preponderance of the evidence is the correct legal standard to use in modification of grandparent visitation cases, similar to modifications of parental responsibilities under C.R.S. 14-10-129 and 14-10-131. Though the court previously applied clear and convincing evidence when they initially sought visitation, this standard is no longer applicable in modification cases. Mother contends, and the court relied on the standard from In re the Adoption of C.A., 137 P.3d 318 (Colo. 2006); specifically that for orders concerning grandparent visitation under C.R.S. 19-1-117, a presumption must be applied in favor of the parent s decision concerning grandparent visitation, which could be rebutted by grandparents only through clear and convincing evidence that the parent s visitation decision was not in the child s best interests and, conversely, that the visitation they sought was in the child s best interests. The Court reiterated that a dispute between parents and grandparents is not a contest between equals. The Court found nothing in a grandparent visitation modification proceeding Page 13
that suggests parent s constitutional rights to care custody and control of their children are in any way diminished, nor did it find that grandparent s have gained any standing equal to that of parents merely because they have been granted statutory noncustodial visitation rights. Additionally, grandparents argued that the trial court should not have admitted evidence that predated the original award of grandparent visitation. The Court of Appeals held that when conditions have changed, or previously unknown material facts are discovered, evidence that predated the decree or award may be considered if it is relevant to the issues on which the requested modification is based. 7. GUARDIANS, SPECIAL ADVOCATES, AND CHILD REPRESENTATIVES In the Matter of Minor Child D.I.S., and Sidman v. Sidman, No. 08CA2454, 2009 WL 3465724 (Colo. App. Oct. 29, 2009); cert. granted (Nov. 9, 2009) Trial Court: Judge Kennedy, El Paso County; Opinion by Judge Rovira (Casebolt and Kapelke, JJ. concur) The Permanent Guardians appeal from the district court s orders that their income and capital gains, should be included in the child support calculation owed by the child s parents, and from the order that the Guardians should travel with the child to Massachusetts, at their own expense, to allow parenting time with the parents. The Court found that C.R.S. 14-10-115, relied upon by the trial court, does not mention a guardian s duty of support. According to the plain language of C.R.S. 14-10-115, only the parents income can be included in the determination of child support. This conclusion is supported by C.R.S. 15-14-209(2), which provides that A guardian need not use the guardian s personal funds for the ward s expenses, and various case law. See In re the Marriage of Conradson, 604 P.2d 701 (Colo. 1979) (C.R.S. 14-10-115 does not include the financial resources of nonparents with whom the child is living); In re J.C.T., 176 P.3d 726 (Colo. 2007) (the guardian typically does not provide the financial resources to support the child). With regard to travel, the court found that C.R.S. 14-10-115(11)(a)(II) provides that any expenses for transportation shall be divided between the parents in proportion to their adjusted gross income. Thus again, according to the plain language of the statute, the parents, rather than the guardians, shall be responsible for any transportation costs. As such the orders are reversed and the case is remanded. The Supreme Court granted certiorari as to the following issues: Page 14
(1) Whether a parent relinquishes his or her fundamental liberty interest in the care, custody, and control of his or her child by consenting to guardianship. (2) Whether it was error to place the burden upon parents to prove, by a preponderance of the evidence, that termination of non-parents guardianship would be in the best interests of minor child, where parents originally consented to the guardianship. In the Marriage of Kanefsky and Concerning Fremerman and Fremerman, No. 09CA0690, 2010 WL 3432208 (Colo. App. Sept. 2, 2010) Trial Court: Judge Arkin, Douglas County; Opinion by Judge Hawthorne (Dailey and Carparelli, JJ. concur) Wife s co-conservators and co-guardians, who are not licensed to practice law, appealed Wife s permanent orders. A case of first impression in Colorado, the issue here is whether a guardian or conservator, acting as an incapacitated or protected person s legal representative, may represent a ward or a ward s estate without an attorney. After hearings in the dissolution and a related probate case, the probate court issued Letters naming Wife s Mother and Sister as co-conservators and co-guardians for the purpose of assisting Wife in her dissolution. After the permanent orders were entered, Mother s Conservators filed an entry of appearance in the dissolution case, and filed a notice of appeal on behalf of Wife seeking to revere certain permanent orders. The Court of Appeals issued an Order to Show Cause for the Conservators to explain how they have standing. A guardian or conservator is an incapacitated or protected person s legal representative. C.R.S. 15-14-102(6). Guardians may petition the court to initiate or maintain actions for dissolution of marriage. C.R.S. 15-14-315.5(1). Conservators may prosecute or defend actions to protect the protected person s assets. C.R.S. 15-14-425(2)(x). While the Colorado Constitution allows every person to represent their interests in the courts, no one is allowed to prosecute or defend an action in which he is not a party without obtaining a license to practice law. C.R.S. 12-5-101. The Court of Appeals held that nonlawyer conservators and guardians are statutory legal authorities only, and their legal authority does not create an exception to C.R.S. 12-5-101 requiring a license to practice law on behalf of others. Therefore, since the Conservators were not licensed to practice law, they cannot represent Wife without an attorney. The Court of Appeals stayed the case 60 days for the Conservators to obtain counsel. Page 15
8. PROCEDURAL AND EVIDENTIARY MATTERS In re the Marriage of Roberts, Schelp and Barnett, 228 P.3d 151 (Colo. Mar. 22, 2010) Opinion by Justice Bender; IRM Roberts: Trial Court: Judge Sandstead, Boulder County; Opinion by Judge Rothenberg (Carparelli and Bernard, JJ. concur) IRM Schelp: Trial Court: Judge Metzger, Arapahoe County; Opinion by Judge Rothenberg (Bernard, J. concurs; Rovira, J. concurs and dissents) In these consolidated cases, the petitions for dissolution or legal separation were all filed before the new effective date of C.R.C.P. 16.2, January 1, 2005. After the trial court entered decrees of dissolution, the Wife in each case filed post-decree motions to set aside the trial court s property divisions, alleging that the Husband s financial disclosures contained misstatements or omissions of value. The Wives all alleged that the trial courts had jurisdiction under C.R.C.P. 16.2(10) because they filed post-decree motions after the effective date of the rule. In Roberts, Husband filed for dissolution in November 2004, and the Court entered the decree of dissolution in September 2005. According to Husband s financial affidavit, Husband s interest in one of his businesses was valued at $663,000 and the value of the stock was $0. In January 2007, Wife filed a post-decree motion to set aside the separation agreement, pursuant to C.R.C.P. 16.2(e)(10), alleging that documents filed with the SEC demonstrated that Husband s stock had a minimum value of $20 million. In Schelp, Husband filed for legal separation in April 2003, and the court dissolved the marriage in May 2004. The trial court ordered the parties to share Husband s pension equally. Husband originally represented that the premarital portion of his pension amounted to 23 days, but then subsequently disclosed that his premarital interest was based upon 12.5 years of work before the marriage. In April 2005, Wife filed a motion to reopen the permanent orders pursuant to C.R.C.P. 16.2(e)(10) because of this change in disclosure. In Barnett, Wife filed for dissolution on October 2002 and their marriage was dissolved in March 2003. The Court ordered that Wife would receive a fixed sum from Husband s pension and Husband would retain his pension. Wife filed a post-decree motion in June 2005 to reopen the property division, alleging that Husband failed to disclosure a second pension. Prior to January 1, 2005, C.R.C.P. 60(b) permitted the trial court to retain jurisdiction for a period of six months after a decree was entered to provide relief due to omissions or misstatements in financial disclosures. C.R.C.P. 16.2 was repealed, amended and then readopted on September 30, 2004, effective for Domestic Relations Cases filed on or after January 1, 2005 and for post-decree motions filed on or after January 1, 2005. Under the new C.R.C.P. 16.2(10), the trial court retains jurisdiction for five years after Page 16
the decree or judgment has been entered when a party omits or misstates material assets in his or her financial disclosures. The Supreme Court found that the five-year retention of jurisdiction provision applies to the five years after the entry of any decree or judgment, and only to financial disclosures that fail to comply with the heightened duties established under the new C.R.C.P. 16.2 for resolving new cases or new post-decree motions filed after January 1, 2005. The Court determined that in cases where the new disclosure duties did not apply, the five-year retention provision also does not apply. The Supreme Court reversed the three Court of Appeals decisions, and held that C.R.C.P. 16.2 does not allow the trial court to retain jurisdiction to modify property divisions based upon disclosures made pursuant to petitions for dissolution that were filed before the effective date of the new rule (January 1, 2005). In re the Parental Responsibilities Concerning L.S., and Concerning McNamara and Spotanski, 226 P.3d 1227 (Colo. App. Oct. 15, 2009); cert. granted (Mar. 15, 2010) Trial Court: Judge Peterson, La Plata County; Opinion by Judge Connelly (Russel, and Sternberg, JJ. concur) In this case regarding jurisdiction pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act ( UCCJEA ), Colorado and Nebraska were exercising simultaneous jurisdiction and issuing contrary orders. The parties resided in Colorado, then separated; Mother stayed in Colorado and Father moved to Nebraska. After a summertime visit with the child in Nebraska, Father refused to return the child. In November 2004, Father filed a legal separation action in Nebraska. Both parties appeared with counsel. Nebraska found that it had jurisdiction over the matter and granted Mother temporary care of the child because Father violated a previously signed agreement between the parties that all custody matters should be resolved in Colorado since the child resided there. In September 2006, Nebraska issued final orders, which made no reference to the home state of the child, but found that Nebraska had jurisdiction over both parties and the subject matter, and awarded custody of the child to Father. Despite this Order, the child continued to reside with Mother in Colorado. In late 2006, Mother filed her second dissolution of marriage case in Colorado (the first was dismissed in January 2005 because Nebraska had jurisdiction.) In December 2006, Colorado held that it was the home state of the child under UCCJEA and declined to enforce Nebraska s final orders of September 2006. Mother also filed a motion to dismiss the Nebraska action for lack of jurisdiction pursuant to the UCCJEA. In April 2007, Nebraska held that it did have jurisdiction because Mother voluntarily submitted the issue of custody to the Nebraska court and did not raise the issue of UCCJEA jurisdiction until after the court s final orders. The UCCJEA prioritizes home state jurisdiction, jurisdiction in the state in which the child resides for at least six consecutive months. C.R.S. 14-13-201(1)(a); C.R.S. 14-13- Page 17
102(7)(a). If home state jurisdiction does not apply, then UCCJEA provides jurisdiction to the state that has significant connections to the child. C.R.S. 14-13-201(1)(b). The Constitution demands that states give full faith and credit to other states orders. In reviewing the Nebraska Order of April 2007, first, Colorado found that the mere fact that Wife voluntarily submitted the issue of custody to the court and did not raise the issue of jurisdiction until after the final orders was not a basis for Nebraska to find that it had jurisdiction. The UCCJEA addresses subject matter jurisdiction, which cannot be conferred by consent or waiver, and its questions of its existence can be raised at any time. With regard to the second finding, Colorado found that Nebraska properly exercised UCCJEA jurisdiction because Colorado had declined jurisdiction and Nebraska had significant connections. Colorado held that it must respect this jurisdictional ruling because jurisdiction was based upon a ground recognized by the UCCJEA, even though it was based upon factually inaccuracies. To prevent injustice, Colorado suggests that the Colorado District Court communicate with the Nebraska District Court to determine if Nebraska is willing to reconsider its jurisdictional and substantive orders. If Nebraska relinquishes jurisdiction, then Colorado may proceed with exclusive jurisdiction; if not, Colorado must respect Nebraska s rulings. Certiorari was granted on March 15, 2010, for the following issue: Whether the court of appeals misinterpreted the Parental Kidnapping Protection Act, the statutory embodiment of the full-faith-and-credit clause of the United States Constitution, thereby erring in its determination that a Colorado court must respect and enforce the prior Nebraska orders. In re the Marriage of Weis, 232 P.3d 789 (Colo. June 7, 2010) Trial Court: Judge DuBois, El Paso County; Opinion by Judge Eid Pursuant to the parties Separation Agreement, ex-wife was to receive $65,000 from the proceeds of the sale of the marital home, from which she was to pay certain joint credit card debts. Ex-Wife paid one credit card off, but did not pay the others. One of the assignees for one of the unpaid debts named ex-husband in a collection action, thus ex- Husband filed two contempt citations against ex-wife related to her failure to pay the debt. Thereafter, ex-wife filed for Chapter 13 bankruptcy, including the credit card debt, but did not indicate any co-debtors. Ex-Wife argued that she was currently on a five-year payment plan, thus the automatic stay that applies in bankruptcy prevented ex-husband from filing contempt to pursue payment. The trial court held that ex-wife was in contempt, the automatic stay did not apply because the contempt actions fell under two exceptions to the automatic stay, that ex-wife willfully refused to pay the debts, sentenced ex-wife to 60 days in jail, and subsequently denied the stay of execution of the jail sentence unless ex-wife posted a supersedeas bond in the amount ex-wife owed ex-husband. Ex-Wife then filed a Petition for a Rule to Show Cause Page 18
pursuant to C.A.R. 21, seeking reversal of contempt finding and alleging that the automatic stay barred to trial court s action. Filing bankruptcy triggers an automatic stay, which suspends any non-bankruptcy court s authority to continue judicial proceedings then pending against the debtor. Quoting In re Vierkant, 240 B.R. 317, 321 (B.A.P. 8th Cir. 1999). There are two narrowly construed exceptions to the automatic stay: (1) bankruptcy does not stay a criminal action, 11. U.S.C. 362(b)(1), and (2) does not stay collection of a domestic support obligation from property that is not property of the estate, 11 U.S.C. 362 (b)(2)(b). The Supreme Court held that the trial court correctly found that the credit card debts were in the nature of a domestic support obligation, as the parties Separation Agreement indicated that waiver of maintenance was in consideration for undertaking debt obligations. But the trial court had no evidence that the credit card debt obligations could be collected from property that is not property of the [bankruptcy] estate. In fact, the court found that ex-wife was unable to pay the debt. Thus the Supreme Court held that though the trial court properly classified the credit card debt as a domestic support obligation, there was no evidence there was property outside of the bankruptcy estate that could pay the obligation, thus the exception to the automatic stay did not apply. With regard to the criminal exception to the automatic stay, the Supreme Court held that the contempt action was civil, not criminal, in nature. In deciding whether contempt is criminal in nature, the court must look to the purpose and character of the sanctions imposed against the contemnor. People v. Barron, 677 P.2d 1370, 1372 n.2 (Colo. 1984). Here, the sanctions were remedial, as ex-wife could purge the jail sentence if she paid the supersedeas bond in the amount of the debt, and the contempt proceedings was designed to force payment to a third party, not to uphold the dignity of the court. Though the trial court found that the punitive sanctions made this case quasi-criminal, the Supreme Court clarified that creditors cannot turn enforcement actions into criminal matters merely by seeking punitive sanctions, and the Bankruptcy Code has no exception for quasi-criminal actions, thus quasi-criminal actions do not create criminal proceedings, thus the exception to the automatic stay does not apply. In re the Marriage of Stockman, No. 10CA0125, 2010 WL 2853758 (Colo. App. July 22, 2010) Trial Court: Judge Rubinstein, Mesa County; Opinion by Judge Dailey (Loeb and Hawthorne, JJ. concur) The magistrate found Husband guilty of two counts of contempt, and ordered Husband to pay attorney fees. The Order stated: NOTICE: This order is issued in a proceeding in which consent of the parties is necessary. Any appeal of this order must be taken with 45 days pursuant to Rule 7(b), C.R.M. Wife filed an appeal. Page 19
Pursuant to C.R.M. 7(b), the Court of Appeals has jurisdiction over any order or judgment entered with the consent of the parties, that is, not subject to review under C.R.M. 7(a). Orders entered without the consent of the parties requires district court review of a magistrate s order before an appeal may be filed. The Magistrate s order of attorney fees in this case was an order that could have been made without the consent of the parties. Therefore district court review of the magistrate s order was required before an appeal could be filed. The Court of Appeals has no jurisdiction therefore the appeal is dismissed. Since a review of the Magistrate s Order by the district court is no longer timely, and Wife relied upon an erroneous or misleading ruling by the court, the Court of Appeals stated that the district court should carefully consider this unique circumstance when it determines whether to accept this untimely appeal. No 2010 Cases to date. 9. PROFESSIONAL NEGLIGENCE No 2010 Cases to date. 10. TRUSTS AND ESTATES No 2010 Cases to date. 11. INCOME TAX MATTERS No 2010 Cases to date. 12. PROTECTION ORDERS No 2010 Cases to date. 13. COMMON LAW MARRIAGE 14. DOMESTIC VIOLENCE Page 20
People v. Disher, 224 P.3d 254 (Colo. Feb. 16, 2010) Trial Court: Adams County District Court; Opinion by Chief Justice Mullarkey The Adams County District Attorney appeals the district court s ruling that no domestic violence evaluation could be required of defendant Disher who was convicted of harassing his ex-girlfriend. Under Colorado s domestic violence statute, a finding of domestic violence requires the defendant to complete a treatment evaluation and a treatment program in addition to serving whatever sentence is imposed. Under C.R.S. 18-6-800.3, a perpetrator of a crime and his or her victim must be, or have been, in an intimate relationship for the crime to constitute domestic violence. Disher was arrested and charged with harassment of his ex-girlfriend, M.P. Despite testimony from M.P. that she and Disher had dated exclusively for a time, the court held there was no evidence of an intimate relationship between the two because no testimony was offered as to a sexual relationship. Because a domestic violence evaluation is not required unless the parties have had a sexual relationship, the court refused to order an evaluation of Disher. C.R.S. 18-6-800.3(2) defines domestic violence as, among other things: an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. Intimate relationship is defined as: a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time. The court stated that evidence of a sexual relationship is not necessary to establish the existence of an intimate relationship. The meaning of the word intimate is not synonymous with sexual. Intimacy is a broader concept that includes, but is not limited to, sexual intimacy. The word intimacy can be modified by the word sexual to specifically denote intimacy of a sexual nature, but intimacy itself is more expansive than just sexual intimacy. Yet, the relationship must be more than that of a roommate, friend, or acquaintance; there must be a romantic attachment or shared parental status between the parties. However, whether an intimate relationship is sexual is not in itself determinative. A sexual relationship may be an indicator, but never a necessary condition, of an intimate relationship. Reading a requirement of sexual contact into the definition of intimate relationship would greatly reduce the scope of the statute. Couples that do not have sexual relations would not be covered. M.P. s testimony that she had an exclusive dating relationship with Disher evidences the type of interpersonal connection that the statute contemplates as it tries to curb relationship violence. 15. ANNULMENT Page 21
In re the Marriage of Farr, 228 P.3d 267 (Colo. App. Feb. 4, 2010) Trial Court: Judge Russell, Arapahoe County; Opinion Judge Graham (Russel and Lichtenstein concur) Husband appeals from the judgment declaring his marriage to wife invalid. The parties thirty-year marriage ended in dissolution in 1999. They remarried in 2004, and in 2007, husband again filed for dissolution. Wife cross-petitioned to declare the second marriage invalid pursuant to C.R.S. 14-10-111(1)(d), asserting that she agreed to marry him based upon his representation that he had a terminal illness and would die within a few years. Wife testified that she agreed to remarry husband because husband was dying and she did not want him to die alone. Standard of proof: Husband contends that the trial court applied the wrong standard of proof in invalidating the parties marriage when it did not apply the clear and convincing evidentiary standard. C.R.S. 13-25-127(1), (4) states that for all civil actions accruing after July 1, 1972, the burden of proof shall be by a preponderance of the evidence, notwithstanding any contrary provision of law. Therefore, the preponderance of the evidence standard applies when a party seeks to avoid a transaction on equitable grounds alleging fraud, undue influence, or mistake. Pursuant to this statute, the Court rejected husband s contention that the trial court erred by not applying a clear and convincing standard of proof when determining wife s petition for invalidity of marriage. Grounds for Invalidity: Pursuant to C.R.S. 14-10-111(d), a court shall enter a decree declaring a marriage invalid if one party entered into the marriage in reliance on a fraudulent act or representation of the other party when the act or representation goes to the essence of the marriage. The trial court found: (1) that wife s testimony was more credible than husband s; (2) that wife believed husband s representation that his death was imminent; (3) that wife did not want husband to die alone; (4) that wife relied on husband s representation that he was dying in deciding to remarry him; and (5) that such representation was fraudulent. Wife and the parties son testified that after the parties remarried, husband did not appear to be ill and that they came to believe he had misled them into believing that he would die soon. Wife further testified that she reviewed husband s recent medical records and that they indicated to her that he was not ill. She also submitted an insurance application form, which was signed by husband and which indicated that he had no medical problems. Here, Husband s misrepresentation went the essence of the marriage. Misrepresentation about a spouse s prognosis and life expectancy can go the essence of the marriage. Wife relied on husband s representation in deciding to remarry and did so only because she believed his death was imminent. Therefore, the misrepresentation went to the essence of this marriage. Page 22
16. PATERNITY In re the Parental Responsibilities of A.D. and Concerning Rueda, No. 09CA0756, 2010 WL 1238841 (Colo. App. Apr. 1, 2010); cert. denied (Colo. Aug. 30, 2010) Trial Court: Judge Goodbee, Adams County; Opinion Judge Rovira (Roy and Richman concur) Mother appeals from a judgment declaring Petitioner Nicholas Rueda to be the presumed natural father of her child, A.D., and awarding him joint decision-making and parenting time. Mother and Petitioner ended their relationship in 1999, and A.D. was born on August 18, 2001. Mother and Petitioner reconciled when A.D. was eleven months old, and resided together as a family until January 2007. For the next year, Petitioner spent several overnights a week with A.D. until Mother discontinued contact in February 2008. In April 2008, Petitioner filed an allocation of parental responsibilities case and amended it to include a claim to establish paternity under the Uniform Parentage Act (UPA), C.R.S. 19-4-101 to -130. At the hearing, Petitioner conceded that he was not the biological or adoptive father of A.D. Mother identified the possible biological father, who received notice of the proceedings but failed to appear. Mother conceded that Petitioner received A.D. into his home and held her out to be his natural child. The trial court established Petitioner as a presumed natural father of A.D. under C.R.S. 19-4-105(1)(d), found that Petitioner had standing as a psychological parent to pursue an allocation of parental responsibilities pursuant to C.R.S. 14-10-123(1)(c), ordered joint decision-making and parenting time to Petitioner and ordered Petitioner to pay monthly child support. Mother contends that the court erred when it failed to notify the alleged biological father of the proceedings as a parent and interested party under C.R.S. 14-10-123(2) and did not join him as an indispensable party under C.R.C.P. 19. The Court of Appeals found that since these issues affect the alleged biological father s rights only, Mother would not have standing to contest these points. Moreover, under C.R.S. 19-4-110, the alleged father could not have been made a party to the action, as he was a California resident and the Colorado court did not have jurisdiction over him, and the alleged father was given notice but chose not to participate. Mother contends that the court erred by not making A.D. a party to the action and appointing a guardian ad litem. As the court determined for the alleged father, these rights belong to the child, and mother lacks standing to contest them. Additionally, C.R.S. 19-4-110 only provides that a child may be made a party and may be appointed a guardian ad litem. Next Mother argues that C.R.S.19-4-102 defines a parent-child relationship as the legal relationship existing between a child and his natural or adoptive parent incident to which the law confers or imposes rights, privileges, duties and obligations. She contends that since Petitioner is neither the natural or adoptive parent of A.D., no legal Page 23
parent-child relationship can be established. Pursuant to C.R.S. 19-4-105(1)(d), a man is presumed a natural father if he received the child, while a minor, into his home and openly held the child out as his natural child. This presumption may be rebutted by clear and convincing evidence, or is rebutted by a court decree establishing paternity (there is no decree in this case). The Court finds that Mother s argument would negate the presumptions identified in C.R.S. 19-4-105(1). The Court finds that the definition cited by Mother in C.R.S. 19-4-102 applies to a parent and child relationship once it is declared. The Court clarified that the trial court s finding that Petitioner was also a psychological parent pertained to its determination of standing under C.R.S. 14-10-123(1)(c). Though the Supreme Court denied certiorari, Justice Coats and Justice Eid would have granted certiorari as to the following issues: (1) Whether the Court of Appeals erred in holding that a parent-child relationship can be established under the Uniform Parentage Act when the party attempting to establish paternity stipulates that he is not the biological father of the child. (2) Whether the Court of Appeals erred in holding that the presumption of paternity contained in section 19-4-105(1)(d), C.R.S. (2009), was not rebutted in the present case. (3) Whether the Court of Appeals erred in concluding that, since Respondent was the declared parent of A.D., the biological mother s constitutional protections as a natural parent against claims for custody by a non-parent were nullified. Page 24
The DSM IV Personality Disorders ( According to Joe Walsh) Presented By: Kathleen McNamara, Ph.D. & Robert M. Smith, Esq. December 10, 2010
Who is Joe Walsh? Known for his hit song about life as a rock star: Life s Been Good to Me, So Far From his 1978 album: But Seriously, Folks
And Joe was a little known expert on the DSM! More from Joe later.
What is the DSM? Diagnostic and Statistical Manual Published by the American Psychiatric Association
DSM III (1980) introduced Multiaxial diagnostic system Axis I: Clinical Disorders Axis II: Personality Disorders Mental Retardation Axis II: General Medical Conditions Axis IV: Psychosocial/ Environmental Problems Axis V: Global Assessment of Functioning
DSM III-R (1987) introduced Passive- Aggressive and Self-Defeating Personality Disorders DSM-IV (1994) dropped them DSM-IV-TR (2000) manual in current use DSM-V (2013, expected) major revisions currently under review
DSM IV s Axis II Personality Disorders 1. Paranoid 2. Schizoid 3. Schizotypal* 4. Antisocial* 5. Borderline* 6. Histrionic 7. Narcissistic 8. Avoidant* 9. Dependent 10. Obsessive-Compulsive* 11. Personality Disorder NOS *Disorders up for retention in DSM V
Presentation of a Personality Disorder Chronic feelings of internal distress believed to be caused by external circumstances Limited set of defenses or coping skills; rigid thinking and responses Behave in maladaptive ways to relieve distress Justify their behavior, despite its ineffectiveness
Inability to self-correct- Lack of self-observing ego Show a pattern of extreme reactions Create upset and distress in others: lots of drama Avoid therapy, except to focus on others Seek validation and find others to align with them Sees self as victims and focuses energy on blaming
Diagnosis Rule outs Pattern is not accounted for better by another mental health condition Pattern is not better accounted for by the direct physiological effects of a substance Pattern is not better accounted for by a medical condition
Shortcut To Thinking About Normal vs. Disordered Personality Functioning Normal: Something going wrong leads to a pattern of problem-solving; there is evidence of flexible thinking; problems are not taken personally; focus is on finding workable solutions Disordered Personality: Something going wrong leads to a pattern of validating identity; there is evidence of rigid thinking; problems become personal and exaggerated, and there is a need to defend or validate the self
How Common are Personality Disorders? Very! 15-19% of general population 39-100% of clinical populations Common among litigants 1/10 of divorcing parents have unremitting conflict
Personalities, not issues, drive chronic conflict!
Five Personality Disorders Commonly Seen in Legal Disputes and How to Deal with Them
1. Borderline Personality Disorder Pervasive pattern of instability of mood, interpersonal relationships, & self-image & marked impulsivity Fears of abandonment: I love, I hate you Intense anger, Highly reactive Dichotomous (all or nothing) thinking: All good or all bad thinking
View of World: Rejecting View of Themselves: Vulnerable View of Others: Angels or Devils Deal with World by: Emotional Justification
2. Narcissistic Personality Disorder Pervasive pattern of self-aggrandizement, need for admiration, and lack of empathy Exaggerates achievements and talents Believes he or she is special and unique Sense of entitlement Interpersonally exploitive Arrogant, haughty behavior or attitudes
View of the World: Theirs View of Themselves: Special View of Others: Servants Deal with World by: Image-management
3. Antisocial Personality Disorder (aka: Con Artists) Pervasive pattern of disregard for and violation of the rights of others Failure to conform to social norms or laws Deceitfulness, conning, can be charming(at first) Impulsivity and aggressiveness; disregard for safety of others Irresponsibility Lack of remorse or empathy
View of World: Dog-Eat-Dog View of Self: Superior View of Others: Suckers Deal with World by: Opportunism
4. Histrionic Personality Disorder Pervasive pattern of excessive emotionality and attention-seeking Need to be the center of attention Relationships characterized by inappropriate seductiveness; uses physical appearance to attract attention Shallow expression of emotions, impressionistic speech lacking detail Theatrical, suggestible, thinks relationships are more intimate than they are
View of World: Impressionistic View of Themselves: Fetching View of Others: Admirers Deal with World by: Performing
5. Paranoid Personality Disorder A pervasive pattern of suspicion and mistrust of other people and persistent interpretation of others motives as malevolent Is preoccupied with doubts about loyalty or trustworthiness of others Read hidden demeaning or threatening meanings into benign remarks or events Persistently bears grudges
View of World: Dangerous View of themselves: Mistreated View of Others: Malevolent Deal with World: Secretiveness
Key Points for Attorneys: Advocate for your client but guard against contributing to, aligning with, or enabling distortions, exaggerations, rigidity Empathize with your client s feelings and stories, but keep them focused on realistic legal strategies and remedies explain benefits of following your advice
Set limits with your clients-stay in control of your case! Avoid criticisms, confrontations, and overreactions (even though your client may provoke you!) Maintain healthy skepticism check facts Model appropriate approaches to dealing with conflict!
If working as a CFI: Avoid diagnostic labeling and inflammatory language; be descriptive Provide sufficient detail to identify patterns of behavior in your reports Consider the practicality of various parenting plans given the personality dynamics Consider referral for evaluation and treatment
And Now The long awaited Joe Walsh Version of the DSM..Along with..a visual montage of famous personality disorders. `
Tips and Techniques for Dealing with a Narcissistic Client a. Avoid direct criticism b. Recognize real strengths and accomplishments c. Listen with empathy d. Share decision-making e. Explain benefits of following your advice f. Explain consequences of future misconduct g. May need consequences, but handle carefully h. Don t ignore or abruptly terminate the relationship
Tips and Techniques for Dealing with Borderline Clients a. Be modest and matter of fact b. Listen respectfully, even to anger and blame c. Provide moderate reassurance d. Provide realistic expectations and boundaries e. Avoid over-reacting to intense emotions f. Avoid using strong anger or intense criticism g. May need consequences, but handle carefully h. Don t ignore or abruptly terminate the relationship
Tips and Techniques for Dealing with an Antisocial Client a. Maintain healthy skepticism b. Avoid being swayed by charm c. Avoid doing favors d. Do not expect to change or save him (her) from himself (herself) e. Obtain corroborating information f. Explain consequences of future misconduct g. Be prepared to impose and enforce consequences h. Pay attention to your fears and protect yourself
Tips and Techniques for Dealing with a Histrionic Client a. Maintain healthy skepticism b. Listen respectfully, then try to focus on tasks c. Empathize with feelings, not with alleged abuses d. Maintain balance of interest and limits on stories e. Provide structure and focus f. Avoid over-reacting to intense criticism g. Avoid using strong anger or intense criticism h. Teach self-help skills, encourage self-sufficiency
Tips and Techniques for Dealing with a Paranoid Client a. Maintain healthy skepticism b. Remain neutral regarding their fears, conclusions, accusations; be matter-of-fact c. Listen respectfully d. Express empathy for their distress e. Do not confront early on f. Do not try to get emotionally close to them g. Acknowledge the accuracy of their observations without validating their paranoid interpretation h. May need consequences, but handle carefully
Readings and Resources Diagnostic and Statistical Manual-IV-TR (2000) American Psychiatric Association Press, Washington D.C. (Available from Amazon.com, Barnes and Noble, etc.) Eddy, B. (2008) High Conflict People in Legal Disputes. Janis Publications, Inc. Eddy B. (2008) It s All Your Fault: 12 Tips for Managing People who blame others for everything. Janis Publications, Inc. Eddy. B. (2009). New Ways for Families: Basic Training Four Disc CDs. High Conflict Institute, LLC, San Diego, CA. Feinberg R. and Greene, J. (1997) The intractable client: Guidelines for working with personality disorders in family law. Family and Conciliation Courts Review 35:351-365. Lester, G. (2005). Personality Disorders in Social Work & Health Care. Cross Country Education, Inc., Brentwood, TN. Linehan, M.J. (1993). Cognitive behavioral treatment for borderline personality disorder. New York: Guilford Press. Millon, T. (1999). Personality-guided therapy. New York: John Wiley and Sons. Quality Assurance Program, (1991). Treatment outlines for borderline, narcissistic and histrionic personality disorders. Australia New Zealand Journal of Psychiatry, 25, 392-403. Wright, W. (1999). Born that Way: Genes, behavior, and personality. Routledge: NY, New York. Young, J.E. (1999) Cognitive Therapy for personality disorders: A schema-focused approach. Professional Resource Press: Sarasota, FL.
Readings and Resources On Personality Disorders Diagnostic and Statistical Manual IV TR (2000) American Psychiatric Association Press, Washington D.C. (Available from Amazon.com, Barnes and Noble, etc.) Eddy, B. (2008) High Conflict People in Legal Disputes. Janis Publications, Inc. Eddy B. (2008) It s All Your Fault: 12 Tips for Managing People who blame others for everything. Janis Publications, Inc. Eddy. B. (2009). New Ways for Families: Basic Training Four Disc CDs. High Conflict Institute, LLC, San Diego, CA. Feinberg R. and Greene, J. (1997). The intractable client: Guidelines for working with personality disorders in family law. Family and Conciliation Courts Review 35:351 365. Lester, G. (2005). Personality Disorders in Social Work & Health Care. Cross Country Education, Inc., Brentwood, TN. Linehan, M.J. (1993). Cognitive behavioral treatment for borderline personality disorder. New York: Guilford Press. Millon, T. (1999). Personality guided therapy. New York: John Wiley and Sons. Quality Assurance Program, (1991). Treatment outlines for borderline, narcissistic and histrionic personality disorders. Australia New Zealand Journal of Psychiatry, 25, 392 403. Wright, W. (1999). Born that Way: Genes, behavior, and personality. Routledge: NY, New York. Young, J.E. (1999) Cognitive Therapy for personality disorders: A schema focused approach. Professional Resource Press: Sarasota, FL.
LIFE S BEEN GOOD TO ME, SO FAR Joe Walsh, But Seriously, Folks... I have a mansion, a four-digit price. Ain t never been there, they tell me it s nice. I live in hotels, tear out the walls. [Antisocial Personality Disorder, 301.7] I have accountants pay for it all. Chorus: They say I m crazy, but I have a good time. I m just lookin for clues at the scene of the crime. Life s been good to me, so far... My Maserati does 185. I lost my license, now I don t drive. I have a limo, ride in the back. I lock the doors, in case I m attacked. [Paranoid Personality Disorder, 301.0] I make hit records, My fans, they can t wait. They write me letters, Tell me I m great. [Histrionic Personality Disorder, 301.50] So I got me an office, Gold records on the wall. Just leave a message, Maybe I ll call. [Narcissistic Personality Disorder, 301.81] Chorus: Lucky I m sane after all I ve been through. [ Everybody say: I m cool ] [ He s cool ] I can t complain, but sometimes I still do Life s been good to me, so far... I go to parties, sometimes until 4:00. [Alcohol Abuse, 305.00] It s hard to leave when you can t find the door [slam]. It s tough to handle this fortune and fame Everybody s so different, I haven t changed. Chorus: They say I m crazy but it takes all my time. [Obsessive-Compulsive Disorder, 300.3] [Oh yeah, Oh yeah] I keep on going yet I never know why [Major Depressive Disorder, 296.2x] Life s been good to me, so far...
THE ANNUAL CIVIL LAW UPDATE 7 th Annual Nuts & Bolts CLE December 10, 2010 Presented by: Jennifer Lynn Peters, Esq. The Honorable Elizabeth Strobel Brett Payton, Esq. District Court Judge Otis, Coan & Peters, LLC 19 th Judicial District The Doyle Building PO Box 2038 1812 56 th Avenue, 2 nd Floor Greeley, CO 80632-2038 Greeley, CO 80634 970-351-7300 970-330-6700 jlpeters@nocolegal.com; bpayton@nocolegal.com Michael C. Payne, Esq. Otis, Coan & Peters, LLC 2026 Caribou Drive, Suite 102 Ft. Collins, CO 80525 970-225-6700 mpayne@nocolegal.com www.nocolegal.com
Scope of Update This update covers all Colorado Supreme Court civil cases issued from December 14, 2009, through December 6, 2010, and all Colorado Court of Appeals published decisions issued from December 10, 2009, through December 9, 2010, excluding campaign finance or election cases, immigration cases, administrative law cases (i.e. appeals from DMV or Board of Assessment decisions), employment cases, and Medicaid cases. Only select tax, water and workers compensation cases are included. Federal cases are excluded. This update also includes select legislative changes and new legislation passed during the 2010 First Regular Session of the Colorado Legislative Assembly. The complete text of all legislation passed during this session can be found online at http://www.state.co.us/gov_dir/leg_dir/olls/digest2010a in the Digest. Table of Contents Practice Pointers from the Civil Bench... 4 CASE LAW UPDATE Adverse Possession... 6 Appeals... 7 Arbitration/Dispute Resolution... 8 Attorney Fees and Costs... 11 Construction Law/Mechanic s Lien... 14 Consumer Protection... 18 Contract/Corporate Claims... 21 First Amendment... 29 Government... 29 Insurance Law... 39 Motions/Trial Practice... 46 Probate/Wills/Trust... 52 Property... 54 Securities... 64 Statutes of Fraud/Limitations... 65 Tax/Tax Deeds... 67 Tort Claims: a. Damages... 72 b. Negligence... 76 c. Premises Liability... 78 d. Products Liability... 80 e. Tortious Interference... 80 Water Law... 81 Worker s Compensation... 82 Zoning/Land Use... 84 Miscellaneous or Other Interesting Cases... 84 ISSUES CURRENTLY UNDER REVIEW Colorado Supreme Court... 86
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Table of Contents -- continued LEGISLATIVE UPDATE Consumer and Commercial Transactions... 88 Corporations and Associations... 89 Courts... 89 Financial Institutions... 92 Government County... 93 Government Local... 95 Government Municipal... 97 Government Special Districts... 99 Government -- State.... 101 Health and Environment... 105 Health Care Policy and Financing... 110 Human Service Health Care... 113 Human Services Social Services... 113 Insurance... 116 Labor and Industry... 122 Motor Vehicles and Traffic Regulation... 127 Probate, Trusts and Fiduciaries... 129 Professions and Occupations... 131 Property... 142 Public Utilities... 145 Transportation.... 147 Water and Irrigation... 148 Rule Changes... 148 Miscellaneous... 151 Otis, Coan & Peters, LLC Page 3 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Practice Pointers from the Civil Bench (or how to keep the judge happy!) 1. Remember to confer. Rule 121, 1-15(8), C.R.C.P. requires counsel to confer in all matters. No longer says no duty to confer if would be meaningless. Courts are looking for Rule 121 certification, at beginning of motion, on all motions. Judge Strobel says will not require conference on motions for summary judgment and motions to dismiss, however. 2. 10 Pages is the Limit (or Don't write as much as Jennifer). Weld County judges are busy. They do not have time to read volumes of novels on each motion. So be brief. Do not repeat arguments. Keep it to 10 pages double spaced, or risk being stricken for being too lengthy! 3. File a Trial Brief. It is impossible to insult the judge by writing a trial brief. It is ok to assume the judge is not familiar with your case or the law applicable to your case. Judges find the trial brief, or hearing briefs, helpful and useful. a. Motions in limine are helpful. Give judges a heads up about issues in the case. The judges do not want to be dealing with evidentiary issues that could have been dealt with at the pretrial conference or by a prior motion on the morning of trial with a jury or expert witnesses waiting. Judges also appreciate knowing what is coming in terms of the arguments to be anticipated at trial over evidentiary issues. 4. Always cite rules and authority. Again, you cannot insult a judge by submitting a brief that assumes the judge knows nothing. To make that brief useful, though, point the judge to a case or rule that you rely on or that supports your argument. Do not make the judge do the research for you. Also be sure to know the rule you are relying on or referring to in court, or bring your rule book so you can find it for the judge. 5. No blood = no emergency. Sometimes there are legitimate emergency or forthwith motions that must be filed, such as for a temporary restraining order, writ of execution, etc. If you have such a motion, be sure to note in LexisNexis that it is an emergency motion and be sure to also give the clerk a heads up. Otherwise, the motion may languish for 18 days. But keep in mind that not everything that feels like an emergency really is. If the judge doesn t think relief is really an emergency, the motion will be held 18 days despite its title. 6. Be nice to the clerk! It should go without saying, but the clerk is an extension of the judge so be nice. Judges hate nothing more than when a lawyer is rude to a clerk, or blames things on a clerk that are not the clerk s fault. This is especially true with regard to setting trials. Keep in mind, Chief Justice Directive 08-05 sets a goal that civil cases not be open more than 1 year. So when the clerk gives you trial dates within a year of the case being at issue, and insists that later dates are not available, do not be rude or become angry at the clerk. She is just doing her job. If the attorneys can't find a date after being given several options, means either shouldn t have taken the case or need to hire another attorney to help do the work. In no case does it justify being mean to clerk. And remember, nothing is ever the clerk's fault. a. Be Responsive. Return the other side's phone calls, be sure to return calls promptly from the court. This is especially true when getting back to the clerk about hearing or trial dates. The lawyers should get along, even if parties do not. Otis, Coan & Peters, LLC Page 4 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 7. Beware of the Denver lawyer reputation. Judges know Denver lawyers have had a tendency to be less civil and often rude or inconsiderate to clerks. Don't conform to this reputation. Be the exception. a. Reacting to Rulings is Counterproductive. Do not react or roll your eyes or otherwise react when a judge rules against you. Making gestures does not help with the effectiveness of your presentation. Not only does it undermine your own credibility, it also makes everyone in the courtroom think the court process is a mockery and not taken seriously even by lawyers. Remember, everyone can see you. 8. Status Conferences can be Your Friend. The court will always have a status conference. Don't be afraid to ask for one. 9. Clarification is Ok. In Division 3, if you get a straight denial with no comments from Judge Strobel don t be afraid to ask her to clarify why she denied a motion or request. The judges would rather clarify their orders than have issues down the road because one side or the other did not understand a ruling. Remember, you cannot offend the judges by respectfully asking the court to explain a ruling or reconsider it. 10. The microphone is always on. Watch what you say at the counsel table. The microphone is always on and you may not want the judge or the recorder picking up what you are saying to your client or co-counsel. Otis, Coan & Peters, LLC Page 5 of 151
1. ADVERSE POSSESSION 7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Case Law Update No. 09CA0799. Hunter v. Mansell. Adverse Possession Equitable Remedies Continuing Trespass Summary Judgment. Betty Hunter (owner) appealed the trial court s judgment denying mandatory injunctive relief requiring the removal of encroachments. Alana Mansell (possessor) cross-appealed the trial court s conclusion that she is not the owner of the disputed property by adverse possession and that the encroachments constitute a continuing trespass. The judgment was affirmed in part and reversed in part, and the case was remanded with directions. The possessor purchased property adjacent to the owner s property in December 2001. In approximately 1974, the seller s husband constructed a metal shed that partially encroached onto the owner s property. At the time of her purchase, the possessor was informed of the encroachment in the "Seller s Property Disclosure." The possessor also was provided a boundary survey plat (Plat) dated September 16, 2001 that showed the encroachment. The possessor s deed from the seller did not include the area of encroachment. The possessor was notified of the encroachment by the owner s attorney in December 2003. Only an informal discussion of the matter occurred at that time. The shed encroaches approximately 14 feet onto the owner s property, and the extent of the encroachment is about 190 square feet. At the time the possessor purchased her property, the metal shed had no foundation and sat in a grassy area. In 2006, the possessor painted it and installed a concrete floor, a large concrete apron, and electricity. On November 22, 2006, the owner filed a complaint, seeking a declaratory judgment that she is the fee simple owner of the disputed property and requesting a mandatory injunction requiring the removal of the portion of the shed that encroaches. The possessor counterclaimed, alleging she was the owner by adverse possession. The owner filed a motion for summary judgment with her affidavit and exhibits, as well as the seller s affidavit. The seller, the seller s husband, and the owner s husband are now all deceased. The trial court granted the owner s motion for partial summary judgment on the adverse possession claim and trial was held on the owner s claim of trespass. The trial court concluded that the possessor s use of the property constituted a continuing trespass and ordered the owner to lease the disputed property to the possessor indefinitely for one dollar a month commencing in 2001, or to sell it to the possessor for an appraised value. The Court or Appeals first considered the possessor s cross-appeal that it was error for the trial court to grant partial summary judgment on the adverse possession claim. The Court affirmed the trial court s judgment, but on grounds different from those relied on by the trial court. The Court held that the affidavits provided by the owner contained undisputed facts that the owner granted the seller permission to maintain the shed on the owner s land. Permissive use cannot ripen into an adverse possession claim. The Court then considered the owner s argument that the trial court s equitable remedy for the continuing trespass was erroneous and that it should have granted the injunctive relief requested. The Court noted that the overwhelming majority of case law in Colorado demonstrates that the preferred equitable remedy for a continuing trespass, absent extraordinary circumstances, is removal of the Otis, Coan & Peters, LLC Page 6 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 encroachment. The matter was remanded for the entry of a mandatory injunction requiring the removal of the encroaching portion of the metal shed. 2. APPEALS No. 09CA0959. Holt Group, L.L.C. v. Kellum. Supersedeas Bond Appeal. Pioneer General Insurance Company (Pioneer) appealed the trial court s order (1) allowing The Holt Group, L.L.C. (Holt) to execute against a supersedeas bond for $91,120; and (2) requiring the balance of the bond to remain in effect during a second appeal of a $210,364 attorney fees award entered in favor of Holt. At issue in this appeal is the extent of Pioneer s obligation as surety for defendants Willie Kellum and Kellum Enterprises, Inc. (collectively, Kellum) in the underlying action. The order was affirmed in part and reversed in part, and the case was remanded with directions. In the underlying action, Holt, a law firm, sued Kellum for $244,371 in unpaid attorney fees. A jury determined that Holt was entitled to only $27,849 in unpaid attorney fees (Holt I). The trial court entered judgment for that amount and, under a prevailing-party provision of the retainer agreement, awarded Holt $210,364 for attorney fees and costs incurred in litigating the case. Kellum appealed the judgment and fee award and, through Pioneer, posted a $306,000 supersedeas bond to stay execution of judgment on those matters during the appeal. Subsequently, the court vacated the $210,364 attorney fees judgment, awarded $38,403 in supplemental attorney fees (Holt II), and reinstated its award of $210,364 in attorney fees. Kellum thereafter appealed the reinstated award (Holt III). Pioneer contended that the trial court erred when it determined that the $38,403 in supplemental attorney fees was a cost covered by (and therefore recoverable by) Holt under the terms of the supersedeas bond. At hearing, the trial court set the bond amount at $306,000, a figure arrived at by multiplying the combined $27,890 jury verdict and the $210,364 prevailing-party attorney fees award by 125 percent. The $38,403 was excluded from the bond because it had not yet been reduced to judgment. Therefore, because the $38,403 was not an amount contemplated under the supersedeas bond, this part of the court s order was reversed and the case was remanded to the trial court. Pioneer also contended that the trial court erred in holding that the supersedeas bond was not discharged, but still in effect, with respect to the $210,364 fee award that had been vacated by the division in Holt I, reinstated on remand, and appealed in Holt III. Because the Court of Appeals in Holt I disturbed only the amount of Holt s attorney fees, and not Kellum s basic responsibility to pay for them, Kellum did not prosecute the appeal in Holt I to the effect required to allow for the discharge of the supersedeas bond as it related to attorney fees. This part of the order was affirmed. No. 09CA0388. O Quinn v. Baca. Personal Injury Offer of Settlement Preservation of Issue for Appeal Record. In this personal injury action, plaintiff William O Quinn appealed that part of the trial court s judgment awarding costs to defendant Leslie Baca. The judgment was affirmed. O Quinn was crossing a street when he was hit by a car driven by Baca. After he filed the present action against Baca for negligence, she timely offered to settle the case for $75,000. O Quinn rejected the offer, the jury returned a verdict in favor of O Quinn, and the trial court calculated O Quinn s final judgment Otis, Coan & Peters, LLC Page 7 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 to be $70,434.71. Because that figure did not exceed Baca s $75,000 offer of settlement, the trial court ordered O Quinn to pay Baca s costs. On appeal, O Quinn contended that the offer of settlement statute, CRS 13-17-202, is unconstitutional. However, the record failed to reflect that O Quinn raised before the trial court the constitutional attacks he raised on appeal to the validity of 13-17-202. Therefore, the Court of Appeals declined to consider them and affirmed the trial court s judgment. 3. ARBITRATION/DISPUTE RESOLUTION No. 09CA0693. Barnett v. Elite Properties of America, Inc. Arbitration Award Issue Preclusion and Certiorari Summary Judgment. Plaintiff Barnett appealed the district court s order confirming the arbitration award against him, and appealed the summary judgment for defendant Elite Properties of America, Inc., doing business as Classic Homes (Classic Homes), which was based on the doctrine of preclusion. The Court of Appeals affirmed the lower court s ruling regarding the arbitration award and reversed the summary judgment against plaintiff on construction fraud and civil conspiracy claims. The Court remanded those claims. In 2002, plaintiff Barnett purchased a home from Classic Homes. The purchase agreement contained a mandatory arbitration of disputes provision. It also had a limited warranty that described the procedures to be followed in any such arbitration. In 2005, the septic system on Barnett s property began to fail. Although Barnett and Classic Homes discussed the problem and Classic Homes tried to resolve it, the septic system was not properly repaired. In 2006, El Paso County held an administrative hearing concerning Barnett s property. The hearing officer found the property was in violation of the Colorado Individual Sewage Disposal Systems Act (Sewage Act), as well as a provision of the county board of health regulations. She issued an order prohibiting Barnett from living, working, or congregating on the property until the problem was remedied. Barnett consequently was not able to rent the home and subsequently lost it in foreclosure. Barnett sued Classic Homes, alleging breach of warranty; willful misrepresentation; breach of the implied covenant of good faith and fair dealing; constructive fraud; negligence; negligence per se; continuing nuisance; violation of the Construction Defect Action Reform Act (CDARA); personal injury; defamation; civil conspiracy; and violation of the Colorado Consumer Protection Act (CCPA). Classic Homes moved to compel arbitration. The district court granted the motion as to all claims except constructive fraud, civil conspiracy, and violations of the CCPA, which were stayed pending completion of the arbitration. The arbitrator granted summary judgment for Classic Homes on Barnett s claim for defamation and on certain damages claims and, after a hearing, issued a detailed opinion on the remaining claims. The arbitrator concluded Barnett was not entitled to any damages except on his CDARA claim, for which he awarded $17,000 for loss of use and enjoyment of his property, and $3,700 for the extra utility costs he incurred. The arbitrator awarded Classic Homes its costs as the prevailing party. Barnett filed a motion in district court to vacate the award. Classic Homes filed a motion for summary judgment on the stayed claims, arguing that the arbitrator had resolved all the underlying factual issues adversely to Barnett and therefore each claim was barred by issue preclusion. The court confirmed the Otis, Coan & Peters, LLC Page 8 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 arbitration award in full and granted Classic Homes summary judgment on Barnett s claims for constructive fraud and civil conspiracy. On appeal, Barnett argued that the district court erred in confirming the arbitration award without making express findings regarding the arbitrator s authority. He argued that the arbitrator exceeded his powers by (1) applying the Colorado Uniform Arbitration Act (CUAA) rather than the Federal Arbitration Act (FAA); (2) awarding costs under CDARA; and (3) by refusing to reopen the evidence after the arbitration award was issued. He further argued that the district court erred by applying the CUAA rather than the FAA when it reviewed the award. The Court rejected each of these arguments. Barnett also argued that the district court erred in applying the doctrine of issue preclusion to grant Classic Homes motion for summary judgment on his constructive fraud and civil conspiracy claims. The Court agreed, finding the application was premature. In Rantz v. Kaufman, 109 P.3d 132, 141 (Colo. 2005), the Colorado Supreme Court held "for purposes of issue preclusion, a judgment that is still pending on appeal is not final." In this case, the direct appeal of the arbitration award was final, but certiorari was still unresolved. In a matter of first impression in Colorado, the Court held that a judgment is not final for purposes of issue preclusion until certiorari has been resolved both in the Colorado Supreme Court and the U.S. Supreme Court by (1) the parties failing to file a timely petition for certiorari; (2) the Court denying the petition for certiorari; or (3) the Court issuing an opinion after granting certiorari. The summary judgment was reversed and the case was remanded with instructions for the district court to stay the claims until certiorari is resolved in both the Colorado and U.S. Supreme Courts. No. 09CA1840. E-21 Engineering, Inc. v. Steve Stock & Associates, Inc. Arbitration Signature Evidentiary Hearing Counterclaims Statute of Limitations. Defendant Steve Stock & Associates, Inc. (Stock) appealed the trial court s orders staying arbitration and dismissing its counterclaims against plaintiff E-21 Engineering, Inc. (E-21). The orders were vacated and the case was remanded for an evidentiary hearing. E-21 sent Stock a letter of intent to enter into a formal subcontract with Stock for the performance of certain aspects of work on a project. Although E-21 sent Stock a subcontract, which included a provision for mandatory arbitration, neither party signed the subcontract. After Stock began work, E-21 wrote Stock a letter rescinding the letter of intent. Stock demanded arbitration, E-21 moved to stay the arbitration, the trial court stayed the arbitration because there was no written agreement, Stock filed counterclaims against E-21, and the court dismissed Stock s counterclaims as being untimely. On appeal, Stock contended that the trial court erred in concluding that the parties had not agreed to arbitrate and by failing to hold an evidentiary hearing to resolve the issue of arbitrability. The lack of signature in and of itself does not invalidate an otherwise enforceable agreement to arbitrate. Because the trial court s determination of arbitrability was based on an erroneous legal conclusion and because the court did not make factual findings regarding enforceability absent a signed document, the case was remanded for an evidentiary hearing and for a determination as to whether the parties had agreed to arbitrate any disputes. Stock also contended that the trial court erred in dismissing its counterclaims as untimely. If the trial court determines on remand that the parties agreed to arbitrate, this issue is moot. If the trial court finds on remand that there was no agreement to arbitrate, the court erred in dismissing Stock s counterclaims because they are compulsory and would be revived pursuant to 13-80-109, C.R.S. Otis, Coan & Peters, LLC Page 9 of 151
No. 09CA1071. Estate of Grimm v. Evans. Contract Arbitration Mental Capacity. 7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 The Estate of Albert F. Grimm (estate) appealed an order compelling arbitration and dismissing its action against defendant John Evans. The order was vacated and the case was remanded for a hearing. Albert Grimm and his son hired Evans to perform legal services. They signed a contract that had an arbitration clause. Grimm died several months later, and his estate sued Evans, alleging that Grimm had lacked sufficient mental capacity to comprehend the nature and effect of Evans s advice and the nature and effect of the documents drafted by Evans. In support of its position, the estate attached an affidavit of Grimm s physician, who stated that it was his professional opinion that Grimm did not understand what he was signing. The district court dismissed the action and ordered the parties to arbitrate. On appeal, the estate contended that, before ordering arbitration, the court should have held a hearing to determine whether the arbitration agreement was unconscionable and whether Grimm was competent when he signed the contract. The Court of Appeals agreed. The court was first required to determine whether the arbitration provision was unconscionable. This includes making a determination as to whether a party had the required mental capacity to enter into a contract. Without a valid agreement, the arbitrator cannot act. Therefore, the court erred by not holding a hearing to determine this issue. The order was vacated and the case was remanded for an evidentiary hearing wherein the trial court must determine whether Grimm lacked the mental capacity to enter into a contract when he signed the agreement. Nos. 09CA2059 & 09CA2522. Braata, Inc. v. Oneida Cold Storage Company, LLP. Arbitration Award Notice. Defendant Oneida Cold Storage Co., LLP (Oneida) appealed the district court order vacating an arbitration award for lack of proper notice and confirming the award in favor plaintiff Braata, Inc. The order was vacated. Oneida had a contract with Braata for janitorial services. The contract stated that any controversies arising from it would be decided by arbitration. In 2008, a dispute arose concerning payment. On August 12, Oneida sent Braata a check for "payment in full," reduced for unsatisfactory and unperformed work. On August 29, Braata sent Oneida a certified letter asserting that Oneida was past due in paying $2,538.39. Oneida did not respond to the letter. Braata then contacted the Judicial Arbiter Group (JAG), and a JAG arbiter conducted a hearing on April 10, 2009. Oneida did not appear. The arbiter found that Oneida had been given notice of the arbitration and the claim, and entered an award in Braata s favor. Braata filed a motion in district court to confirm the award. Oneida objected and moved to vacate, arguing that the August 29 letter did not constitute an initiation of arbitration and that Braata had sent no other certified letters. The trial court denied the motion to vacate and confirmed the award. On appeal, Oneida argued that the district court erred by not making an independent finding as to compliance with the notice provisions of 13-22-223(1)(f), C.R.S., and that the August 29 letter did not constitute an initiation of arbitration as a matter of law. The Court agreed. When a party moves to vacate an award for inadequacy of notice, the district court is required to make a de novo determination as to whether there was improper notice of initiation of arbitration proceedings that resulted in substantial prejudice to the moving party. Here, the district court failed to make such a determination. The Court Otis, Coan & Peters, LLC Page 10 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 remanded the case to the district court to determine whether the failure to provide statutory notice resulted in substantial prejudice to Oneida. No. 09CA2134. Taubman Cherry Creek Shopping Center, LLC v. Neiman-Marcus Group, Inc. Arbitrability. In 1989, the Neiman-Marcus Group, Inc. (Neiman) entered into a seventy-page long-term lease on a parcel of the Cherry Creek Shopping Center (Mall) with Taubman Cherry Creek Shopping Center, LLC (Taubman). In 2009, a dispute arose concerning apportionment of property taxes. Neiman sought arbitration, contending the dispute fell under certain arbitration provisions of the lease. Taubman filed a motion for a stay of arbitration under 13-22-205, -206, and -207, C.R.S., which the trial court granted. The Court of Appeals vacated the order and remanded the case. The lease has nineteen articles and the only one requiring arbitration as a dispute remedy is Article III, concerning "Real Estate Taxes." The provisions provide, in part, a formula for determining Neiman s tax obligations and that the parties will submit to arbitration any disputes concerning the amount attributable to the Demised Premises or the common area and Neiman s share of the common area tax. The dispute here concerned a tie-back credit (designed to avoid overvaluation of the common area as used in conjunction with all the parcels) that was assigned by the tax assessor only to Taubman s parcel. Neiman argued that Taubman should have reduced the common area impositions it charged to other tenants and that the dispute is subject to arbitration under the provision in Article III providing the parties will arbitrate tax disputes "in the even such [c]ommon [a]rea is not separately assessed." Taubman argued that because the common area was separately assessed, the provision does not apply. The parties agreed the dispute was governed by the Colorado Uniform Arbitration Act (CUAA). The Court first addressed Neiman s argument that the arbiter, not the court, should have determined arbitrability. The Court found that, at best, whether the parties agreed to have an arbiter decide questions of arbitrability under the lease was ambiguous and therefore the lease did not abrogate the general rule that courts make such determinations. The Court then turned to whether the dispute is within the parties agreement to arbitrate. The Court found it was. The dispute at issue was whether Taubman should have reduced Neiman s share of the common area impositions to make up for the fact that the tie-back credit was assigned only to Taubman s parcel. This is within the scope of the agreement to arbitrate any disputes concerning Taubman s calculations of Neiman s share of the common are impositions. The order staying arbitration was vacated and the case was remanded. 4. ATTORNEY FEES AND COSTS No. 09SA269. Concerning the Application for Water Rights of the City and County of Broomfield: City and County of Broomfield v. Farmers Reservoir and Irrigation Co. Exemption From Litigation Costs Under C.R.C.P. 54(d). The Supreme Court affirmed the water court s award of costs against Farmers Reservoir and Irrigation Company, holding that mutual ditch companies are not subdivisions of the state and therefore are not exempt from the award of costs under C.R.C.P. 54(d). The Court also held that (1) Rule 54(d) does not violate the due process or equal protection guarantees contained in the U.S. and Colorado Constitutions; (2) the award of costs against a non-governmental entity neither infringes on a fundamental Otis, Coan & Peters, LLC Page 11 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 constitutional right nor implicates a suspect class; and (3) Rule 54(d) s provision exempting the government from costs in litigation is rationally related to the goal of protecting the public treasury and thus constitutional. No. 09CA2138. Carruthers v. Carrier Access Corporation. Colorado Wage Act Attorney Fees Frivolous Discretion. Plaintiff appealed the trial court s order directing him to pay attorney fees to prevailing defendants, Carrier Access Corporation and Turin Networks, Inc. (collectively, Carrier). The order was affirmed. Plaintiff sued Carrier, claiming that Carrier violated the Colorado Wage Claim Act (Wage Act) by failing to pay him commissions of approximately $210,000, owed under a written agreement when Carrier terminated his employment. At trial, the court directed a verdict in Carrier s favor on plaintiff s claim. The court further ordered plaintiff to pay attorney fees to Carrier pursuant 8-4-110(1), C.R.S., of the Wage Act. On appeal, plaintiff contended that the trial court erred in awarding attorney fees to Carrier because it failed to find that plaintiff s claim was frivolous. The Court of Appeals disagreed. The plain language of 8-4-110(1), C.R.S., allows, but does not require, a court to award attorney fees to a prevailing employer in the exercise of its discretion, even where the employee s Wage Act claim was not frivolous. Plaintiff also contended that the amount of fees awarded by the court ($34,000) was unreasonable under the circumstances, and that the district court did not adequately explain the basis of the award. The Court found that the district court did not make findings sufficient to permit meaningful appellate review. Therefore, the case was remanded for additional findings on this issue. No.09SC598. Crandall v. City & County of Denver. 13-17-201, C.R.S. 13-16-113(2) C.R.S. Costs and Attorney Fees After Dismissal of Tort Claims. This appeal, involving an award of costs and attorney fees, is the third in a series related to a class action lawsuit for harm allegedly caused by contamination in a concourse at Denver International Airport. The Supreme Court granted certiorari to review the decision of the court of appeals, and affirmed the court s decision. Following pre-trial dismissal of this case under C.R.C.P. 12(b) for lack of subject matter jurisdiction, respondent City and County of Denver (Denver) sought attorney fees and costs from plaintiffs pursuant to 13-17-201, C.R.S., which awards attorney fees to a defendant after pre-trial dismissal of tort claims under C.R.C.P. 12(b). The district court granted the award but reduced the amount on the basis that Denver was not entitled to recover its fees and costs for work product that may be useful in defending against plaintiffs related federal action. The court of appeals reversed the district court s award reduction, concluding that Denver was entitled to all of its costs and attorney fees. The Court held that 13-17-201, C.R.S., and its companion statute governing costs, 13-16-113(2), C.R.S., are mandatory and a court may not reduce an award on the basis that certain costs and fees are for work that may be useful in companion litigation. Accordingly, the Court determined that the district court s award reduction was in error, and affirmed the ruling of the court of appeals. Otis, Coan & Peters, LLC Page 12 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 No. 09SC916. Jefferson County Board of Equalization v. Gerganoff. Authority of Board of Assessment Appeals to Award Costs on Appeal 39-8-109(1) C.R.S. After the Board of Assessment Appeals (BAA) sustained respondents (taxpayers) appeal and reduced the assessed valuation of their home, taxpayers sought an award of the costs they incurred in hiring an expert appraiser for the appeal. The BAA denied the request without explanation, and taxpayers appealed. The court of appeals concluded that 39-8-109(1), C.R.S., required the BAA to award costs to successful parties. However, due to the absence of written findings, the court was unable to determine whether the BAA had properly exercised its discretion when it awarded zero dollars in costs. Accordingly, the court reversed the BAA s judgment and remanded the case to the BAA for reconsideration. The Supreme Court reversed the court of appeals decision. The Court held that 39-8-109(1), C.R.S, as it read prior to 2010, did not require the BAA to award costs to those taxpayers who prevailed in cases before it. Whether to award costs remains within the BAA s discretion, and in this case, it declined to award costs. No. 09CA1467. City of Colorado Springs v. Andersen Mahon Enterprises, LLP. Eminent Domain Offer Award Attorney Fees Prejudgment Interest 38-1-122(1.5), C.R.S. In this eminent domain proceeding, petitioner City of Colorado Springs (City) appealed the trial court s order awarding attorney fees to respondent Andersen Mahon Enterprises, LLP. The order was reversed. The City and Andersen Mahon were unsuccessful in negotiating just compensation for the taking of Anderson Mahon s property, which was to be used by the City to widen a roadway. Andersen Mahon rejected the City s final written offer of $1.2 million. On August 15, 2008, the City filed a Petition in Condemnation. On September 4, 2008, the City took possession and deposited into the court registry $1,024,000, a sum equal to its appraised value of the property. After the valuation trial in April 2009, a court-appointed board determined that the value of the property on September 4, 2008, was $1,542,294. This award was 28.5 percent higher than the City s final written offer of $1.2. Andersen Mahon then moved for an award of attorney fees pursuant to 38-1-122(1.5), C.R.S. It argued that prejudgment interest should be added to the board s valuation award in determining whether the City s final written offer had been exceeded by 30 percent. The trial court agreed with Andersen Mahon and awarded attorney fees. On appeal, the City argued that prejudgment interest is separate from the "award by the court," within the meaning of 38-1-122(1.5), C.R.S. The Court of Appeals agreed. Under 38-1-122(1.5), C.R.S., property owners are entitled to reimbursement for attorney fees they incur in challenging the governmental entity s valuation of their condemned property if the court s award exceeds the condemning entity s last written offer by 30 percent. The phrase in this statute, "award by the court," means only the property valuation award, and not the valuation award plus prejudgment interest. Because the award (not including prejudgment interest) did not exceed the 130 percent threshold of the last written offer by the City, Andersen Mahon was not entitled to attorney fees. Therefore, the award of attorney fees was reversed. Otis, Coan & Peters, LLC Page 13 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 No. 08CA2503. Berra v. Springer and Steinberg, P.C. Contingency Fee Agreement Reasonableness Quantum Meruit. In this attorney fees dispute, defendants Springer and Steinberg, P.C. and Jeffrey Springer (collectively, S&S) appealed the trial court s judgment refunding to plaintiff Cathy Berra a portion of a previously paid contingent fee. The judgment was affirmed. After being injured in an automobile accident with George Wilkinson, Berra hired an attorney (attorney #1) on a contingent fee basis to represent her in a civil action against Wilkinson. Berra thereafter hired S&S to represent her in collecting the judgment and in contesting the attorney s lien filed by attorney #1. S&S failed to revive the first lien and filed a new judgment lien. As a result, Berra lost her earlier lien priority. Wilkinson later sold his real property and Berra received the full amount of her judgment plus interest. S&S received a fee of $353,250.07, which represented 30 percent of the recovery of the judgment and interest. Berra later sued S&S for its excessive fee. The trial court found the actual fee received by S&S was unreasonable and excessive. On appeal, S&S contended that the trial court erred in determining the reasonable value of its services under a quantum meruit analysis without first finding that the contingent fee agreement was invalid and unenforceable. However, the circumstances of this case, including the trial court finding that the actual fee received by S&S was unreasonable and excessive, leads to an interpretation that the contingent fee agreement was invalid and unenforceable. Therefore, a quantum meruit analysis was appropriate. S&S also contended that the trial court erred in evaluating the enforceability of the fee agreement when it considered factors relating to risk and difficulty of work in retrospect, rather than as they appeared at the outset of the case. The Court of Appeals disagreed. It was appropriate for the court to consider whether the services to be performed were reasonably worth the amount stated in the agreement by considering the amount of time spent, the novelty of the questions of law, and the risk of non-recovery to the client and attorney. Therefore, the trial court did not err in taking into consideration events that occurred before and after the parties entered into the fee agreement such as the complexity of the case, the amount involved, and the results obtained by S&S s efforts to determine the enforceability of the agreement. The judgment was affirmed. 5. CONSTRUCTION LAW/MECHANIC S LIENS No. 09SC223. Smith v. Executive Custom Homes, Inc. Construction Defect Action Reform Act Personal Injury Claims Claim Accrual Statute of Limitations Statutory Interpretation Repair Doctrine Equitable Tolling. In this appeal from a grant of summary judgment, the Supreme Court held that claims for personal injury under the Construction Defect Action Reform Act begin to accrue for purposes of the two-year statute of limitations at the time the claimant first discovers, or in the exercise of reasonable diligence should have discovered, the physical manifestations of the defect that ultimately causes the injury. The Court further held that the statute s notice of claim and tolling provisions preclude equitable tolling under the repair doctrine. The Court reversed the ruling of the court of appeals. The case was remanded with instructions to affirm the ruling of the trial court. Otis, Coan & Peters, LLC Page 14 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 No. 09CA1369. Weize Company, LLC v. Colorado Regional Construction, Inc. Construction Dispute Mechanics Lien Foreclosure Trust Fund Statute Lis Pendens. In this construction dispute, the Court of Appeals affirmed the trial court s dismissal of a lien foreclosure claim and the award of damages. The case was remanded. Colorado Regional Construction, Inc. (CRC) hired Weize Company, LLC (Weize) as a plumbing subcontractor. Plaintiff-intervenor, Martz Supply Company (Martz) provided plumbing materials to Weize. After Weize had completed all of the underground plumbing and some of the above-ground plumbing, CRC replaced it with a different subcontractor. When CRC failed to pay Weize for the completed work, Weize recorded mechanics liens against the project and commenced this action. Martz intervened, joining in the claims for breach of contract and lien foreclosure. It added a claim against CRC for treble damages and attorney fees under the trust fund statute. CRC argued the trial court erred by precluding its defense that all claims were barred because Weize s principal, John Neiberger, was not licensed as a master plumber and Weize did not employ a master plumber on the project. The Court disagreed. CRC relied on 12-58-105, C.R.S. The Court rejected CRC s argument that, because lack of licensure rendered the contract illegal, Weize did not have standing. Standing is a jurisdictional limitation. The Court rejected the one case relied on by Weize in this regard and found that all other cases and jurisdictions treat an illegal contract as an affirmative defense, not a basis for lack of standing. Weize moved to compel CRC to make initial disclosures three months after Weize and Martz had made their disclosures. When CRC did not respond, the trial court ordered it to submit initial disclosures by September 4, 2008. On October 24, Weize requested that the court enter a default judgment because CRC still had not made its disclosures. The Court declined to enter default judgment, but after CRC finally submitted its disclosures on November 12, the court struck all of CRC s counterclaims and affirmative defenses as a sanction for the discovery abuse. The Court found no abuse of discretion in the sanction. CRC then argued it was error to find that it violated the trust fund statute because the record did not support rejecting CRC s good faith defense under subsection 2 of the trust fund statute, and because substituting bonds for liens released CRC from the requirement to hold funds in trust under subsection 3. The Court rejected both arguments, finding that the evidence in the record supported the trial court s findings rejecting the good faith defense and that CRC s lien release bonds did not support exemption from the trust fund statute. The Court also affirmed the trial court s treble damages and attorney fees award as supported by the evidence. On cross-appeal, Weize and Martz argued the trial court erred in directing a verdict on Weizes s lien foreclosure claim for failure to have recorded a lis pendens as required by 38-22-110, C.R.S.. The Court found no error. No. 09CA2184. AC Excavating, Inc. v. Yale. Trust Fund Statute Civil Theft. Plaintiff AC Excavating, Inc. (AC) appealed the trial court s judgment in favor of defendant Donald A. Yale on an alleged violation of the trust fund statute, 38-22-127, C.R.S., and the civil theft statute, 18-4-401, C.R.S. The judgment was reversed. Otis, Coan & Peters, LLC Page 15 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 In the late 1990s, Antelope Development, LLC (Antelope) began developing the Antelope Hills Subdivision, a residential golf course community in Bennett. Keystone Development, LLC managed Antelope. Antelope formed and managed Antelope Hills Golf Course LLC (Antelope GC) to build the golf course. Antelope received initial financing through construction loans from First National Bank of Colorado (First National). In 2003, when First National opted not to renew the loans, Horizon Bank (now Mile High Bank) replaced the loans. In 2004, the Horizon loan reached its limit. In 2005, Antelope GC sold the golf course to Ironwood Golf Properties of Colorado, LLC. A term of the sale required Antelope to construct a retention pond on the property (Pond Project). In 2006, AC entered into an oral agreement with Keystone and Antelope to work on the Pond Project. AC ultimately received $150,000 of the $190,680.30 it charged. In mid-2006, AC entered into a separate oral agreement with Keystone and Antelope to perform remedial grading work on the development s residential lots (Coxsey Project). AC did not receive any of the $7,707.50 it charged. Yale was a 44 percent shareholder in Antelope. On June 30, 2006, Yale replaced Keystone as the manager of Antelope and learned that Antelope had $100,000 in the bank and unpaid invoices on the Pond Project alone of more than $250,000. During the next six months, Yale personally loaned Antelope $157,500, the proceeds of which were applied to general business expenses and some of the outstanding subcontractor invoices. Later in 2006, Yale foreclosed on a series of municipal bonds held as collateral for loans he had made to Antelope before assuming the role of sole manager. Yale withdrew $50,000 from the Antelope account to cover the interest on the municipal bonds. AC sued Yale for violations of the trust fund and civil theft statutes. The trial court entered judgment in favor of Yale. On appeal, AC argued the trial court erred in narrowly interpreting the trust fund statute. The Court of Appeals agreed. Under the statute, a contractor cannot use any of the funds on a project to pay corporate overhead, compensation, or other expenses unless and until the suppliers and laborers are paid in full. AC argued that it was error to find that Yale s loans to Antelope did not fall under the trust fund statute because they were not construction loans but general purpose survival loans for the company. The Court agreed. The statute covers "all funds disbursed" on a construction project, not just construction loans. AC also argued it was error for the trial court to rely on Yale s stated purpose for the use of his loans in determining he was not liable under the Trust Fund Statute. The Court agreed. The intent of the disburser of funds is not relevant to the determination of whether they fall under the statute, because it covers all funds disbursed. AC also contended that the trial court erred in determining that Yale was not liable for civil theft when he withdrew $50,000 from the Antelope account rather than pay the subcontractors. The Court agreed, finding that the trial court failed to determine whether Yale knowingly used the money in such a manner as to permanently deprive AC of its use or benefit. The judgment was reversed and the case was remanded for further proceedings. Otis, Coan & Peters, LLC Page 16 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Nos. 08CA2645 & 09CA0695. Hildebrand v. New Vista Homes II, LLC. New Home Construction Negligence Purchase Agreement Disclaimer Damages Fair Market Value. Plaintiffs Mark A. Hildebrand (son) and Mark L. Hildebrand (father) appealed the directed verdict entered in favor of defendant Richard Reeves. Defendant New Vista Homes II, LLC, appealed the judgment entered on a jury verdict in favor of plaintiffs. The judgment was reversed in part and affirmed in part. Plaintiffs purchased a new home that was being built by New Vista. After movement of the basement floor slab damaged the home, they sued both New Vista and Reeves, its manager, under the Construction Defect Action Reform Act (CDARA). The trial court entered a directed verdict for Reeves. The jury returned a $540,754 verdict on all of plaintiffs claims against New Vista. On appeal, plaintiffs contended that the trial court erred by directing a verdict for Reeves. Whether an individual defendant approved of, directed, actively participated in, or cooperated in the corporation s negligent conduct usually is a question of fact for the jury. Here, Reeves had selected Terracon, a geotechnical engineering firm, to perform soil investigations. Terracon prepared four reports on the subdivision and an individual report on each lot. Reeves read all of the soil reports and was aware of Terracon s recommendations for structural floors and sump pumps. However, Reeves did not direct the structural engineer to prepare a structural foundation plan that would accommodate a structural floor, and decided not to install a sump pump in any home. When viewed in the light most favorable to plaintiffs, this evidence is sufficient for a jury to determine that Reeves actively participated in, directed, or sanctioned conduct that may have been negligent, and that he knew or should have known that plaintiffs home was negligently constructed. Therefore, the trial court erred by not allowing the jury to consider whether Reeves was negligent. New Vista contended that the trial court erred by denying its motions for directed verdict and judgment notwithstanding the verdicton all claims. New Vista argued that because the purchase agreements allowed buyers either to assume the risks of a slab-on-grade floor or to choose a structural floor, the disclaimers in plaintiffs purchase agreement barred their negligence claim. Plaintiffs, however, presented evidence that a portion of this disclaimer was crossed out and that the salesperson told them the disclaimer did not apply because the builder had already selected the basement for that house. Where, as here, the face of the contract shows a change, the terms may be proven by evidence not in the document. New Vista also argued that it cannot be held liable for the actions of independent contractors, such as the soils engineer, the structural engineer, and the architect. The Court of Appeals disagreed. A defendant can be liable for negligence if it fails to follow the recommendations of its independent contractors. Here, New Vista ignored the recommendations of the soils engineer to install a structural floor in the basement. New Vista further contended that the recommendations in Terracon s subdivision reports were irrelevant because the report for plaintiffs lot stated that the use of a slab-on-grade floor system could be considered. Because a reasonable jury could have rejected New Vista s position that it merely let the [plaintiffs] decide whether to purchase a home with a slab-on-grade basement floor, the trial court did not err by sending plaintiffs negligence claim against New Vista to the jury. Finally, New Vista contended that because estimated repair costs exceeded fair market value of the home, the trial court erred in not capping repair cost damages at fair market value. The Court disagreed. Otis, Coan & Peters, LLC Page 17 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 The record shows that fair market value was disputed, so it was not error to submit repair costs to the jury. Accordingly, plaintiffs did not present sufficient evidence to support their soil condition disclosure, implied warranty, and Colorado Consumer Protection Act claims. The case was remanded with directions to reinstate for retrial claims of negligence and negligent misrepresentation as to damages and liability. 6. CONSUMER PROTECTION No. 09CA0253. State of Colorado v. Mandatory Poster Agency, Inc. Colorado Consumer Protection Act "Knowingly" Requirement. The State of Colorado appealed the trial court s pre-trial order dismissing its claim under 6-1-105(1)(d), C.R.S, of the Colorado Consumer Protection Act (CCPA), as well as the court s judgment for defendants, the Mandatory Poster Agency, Inc. (MPA), Steven Fata (MPA President), Thomas Fata (MPA Vice President), and Joe Fata (MPA Secretary and Treasurer), on its remaining CCPA claims. The judgment was affirmed, the order was reversed, and the case was remanded with directions. MPA is a Michigan corporation that sells workplace posters to employers using direct mail solicitations. The posters are designed to comply with state and federal posting requirements. In Colorado, MPA conducts business under the names the Colorado Labor Law Poster Service (CLLPS) and Colorado Food Service Compliance Center (CFSCC). Since 2003, MPA has mailed approximately 149,000 CLLPS solicitations to Colorado employers and filled approximately 18,000 orders. In addition, it has mailed approximately 6,000 CFSCC solicitations and sold posters to 170 Colorado employers. The CLLPS solicitations represented that failing to post certain notices violated certain laws and possibly subjected the violator to criminal and civil penalties. The CLLPS solicitations also included a disclaimer that it was a non-governmental organization, and that certain posters might be available for free from the issuing governmental agencies. The CFSCC solicitation inaccurately represented that state and federal food codes impose on food service establishments a requirement to post notices regarding hand washing, and that penalties include fines, license suspension or revocation, civil liability, and imprisonment. After learning of the error, defendants sent all customers that had ordered the hand-washing posters a letter informing them of the inaccuracies and offering a full refund. Following inquiries from employers to the Colorado Department of Health and Environment regarding whether the solicitations were accurate and what the posting requirements and penalties are, the state filed a complaint alleging defendants had violated the CCPA. Following a Bench trial, the trial court issued judgment for defendants, finding they had not violated the CCPA because the inaccurate information in MPA s notices resulted from negligence. The state appealed. The state argued that the trial court erred in granting defendants motion to dismiss its 6-1-105(1)(d), C.R.S., claim. The Court of Appeals agreed. The trial court granted the motion because the state s complaint failed to expressly plead a violation and its prayer for relief was not under subsection (1)(d). The Court held that the complaint contained facts alleging defendants deceived consumers about their goods geographic origin, and that this was sufficiently particular to allege a claim under subsection (1)(d). The trial court was ordered to reinstate the claim. Otis, Coan & Peters, LLC Page 18 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 The state also argued that the trial court improperly interpreted the "knowingly" requirement in 6-1- 105(1)(b), (c), and (e), C.R.S. Here, the Court found no error. The record supports the trial court s findings that the inaccuracies in defendants posters and solicitations were made negligently, not recklessly, knowingly, or intentionally (a CCPA violation requires that defendants act knowingly). The trial court s order dismissing these claims was affirmed. No. 09CA0252. General Steel Domestic Sales, LLC v. Hogan & Hartson, LLP. Colorado Consumer Protection Act Consequential Damages. Plaintiffs General Steel Domestic Sales (General Steel) and Jeffrey W. Knight appealed from the dismissal of their Colorado Consumer Protection Act (CCPA) claim against Ty Cobb and the law firm of Hogan & Hartson, LLP, and from that part of the judgment precluding plaintiffs from recovering consequential damages in their claim of breach of contract. The judgment was affirmed in part and reversed in part, and the case was remanded with directions. Plaintiffs retained Ty Cobb and his firm to defend General Steel against an action brought by the Colorado Attorney General (the Colorado AG action). Plaintiffs said they retained Cobb s services because of his reputation for being experienced in representing white collar defendants in complex, high-stakes cases. The representation agreement provided Cobb would have primary responsibility for the matter, with assistance as required from other attorneys in the litigation group, and that any dispute over legal fees would be submitted to binding arbitration. Cobb was actively involved in the Colorado AG action for two months, but then moved his practice to Hogan & Hartson s Washington, D.C. office, effectively terminating his involvement in the case. Plaintiffs retained another law firm, though other Hogan & Hartson attorneys continued work on the case. Plaintiffs paid legal fees to both firms and ultimately the case settled. Plaintiffs then sued Cobb and Hogan & Hartson, alleging fraud, breach of fiduciary duty, breach of contract, and violation of the CCPA. The CCPA claim alleged that defendants had engaged in the "deceptive trade practice" of " bait-and-switch advertising." Defendants filed a motion to dismiss the CCPA claim and a motion to compel arbitration of the contract claim. The trial court granted both motions and limited the damages on the contract claim to the legal fees paid. On appeal, plaintiffs first claimed it was error to dismiss the CCPA claim on the ground that the allegations were insufficient to show that the allegedly deceptive trade practice significantly impacted the public. The Court of Appeals disagreed, noting that plaintiffs only had to set forth facts that, if proved, could establish public impact under any theory of the law. Plaintiffs alleged defendants baited them and other prospective clients with "a glowing interview of Cobb in The Denver Post." They argued that this constituted mass advertising and, as such, has an inherent public impact. The Court disagreed, because in the context of a CCPA claim, mass advertising does not create a public impact unless it contains misrepresentations or deceptive information. Here, there was no representation that Cobb would act as lead counsel on any case for which his services were sought and thus no misrepresentation. Plaintiffs also argued it was error for the trial court to determine that even if its original dismissal of the CCPA claim was erroneous, the findings of the arbitrator that defendants did not intend to deceive plaintiffs barred their CCPA claim through issue preclusion. Plaintiffs contended that the bait-andswitch claim does not include an intent element. The Court disagreed, holding that the bait-and-switch provision requires not only a scheme to lure prospective customers with deceptive advertising, but also an intention to not comply with the advertisement s terms. The Court also held there was no "switch" Otis, Coan & Peters, LLC Page 19 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 here, because plaintiffs, if baited by the promise of being represented by Cobb, actually received that bait, at least for a time. At most, this might be breach of contract for failure to perform as promised. Plaintiffs argued that it was error to not allow them to seek consequential damages on their breach of contract claim on the ground that their negligence claim had been dismissed. The Court agreed. The damages available in the time-barred negligence action were separate and distinct from the damages available in the breach of contract action. Plaintiffs should not have been precluded from seeking consequential damages on their breach of contract claim. Accordingly, this part of the decision was reversed and remanded, to be heard by the trial court or referred to arbitration. No. 09CA1966. Carter v. Brighton Ford, Inc. Summary Judgment Implied Warranty of Merchantability Revocation of Acceptance 13-21-402, C.R.S. Plaintiff Chad Carter appealed the summary judgment dismissing his claims against defendant Brighton Ford, Inc. for breach of implied warranty of merchantability and revocation of acceptance. The judgment was reversed. In April 2007, Brighton Ford sold Carter a 2006 Mustang produced pursuant to a joint manufacturing agreement between Ford Motor Company and Saleen Inc. The car contained numerous s highperformance components that were manufactured or installed by Saleen. The vehicle experienced numerous mechanical defects from the day of purchase and was inoperable for more than thirty days during the first year of ownership. In October 2007, Carter brought this action, including claims against Brighton Ford for breach of implied warranty of merchantability and revocation of acceptance under the Colorado Uniform Commercial Code, as well as claims against Ford and Saleen for violation of the Colorado Lemon Law, revocation, and breach of express and implied warranties. Ford Motor Company was dismissed after discovery revealed the mechanical defects were solely attributable to Saleen. Saleen ceased operations. Brighton Ford moved for summary judgment, arguing Carter s claims were product liability claims and therefore barred by the "innocent seller" statute, 13-21-402, C.R.S. The trial court agreed, and Carter appealed. The Court of Appeals read the plain language of the innocent seller statute as stating that although product liability actions may not be brought against innocent sellers, "other actions" may be brought. It was undisputed that Brighton Ford was a non-manufacturing seller. Thus, the Court considered whether Carter s contract claims constitute product liability claims or whether they should be considered "other actions" that can be maintained. The Court concluded that Carter s claims were not based on product liability and may proceed. Essentially, the Court found that contract claims that seek only economic loss for a defective product without collateral damage or risk of harm to others do not constitute product liability actions. Accordingly, the judgment was reversed and the case was remanded with directions. Otis, Coan & Peters, LLC Page 20 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 7. CONTRACT/CORPORATE CLAIMS No. 08CA1677. PurCo Fleet Services, Inc. v. Koenig. Rental Vehicle Damages Loss of Use Administrative Charges Colorado Fair Debt Collection Practices Act Attorney Fees. PurCo Fleet Services, Inc. (PurCo) appealed the summary judgment dismissing its breach of contract claims against Judith Koenig. Koenig cross-appealed the summary judgment in PurCo s favor on her claims under the Colorado Fair Debt Collection Practices Act (CFDCPA). The judgment was affirmed in part and reversed in part, and the case was remanded with directions. Koenig rented a car from National Car Rental (National) and signed the company s standard rental contract. While driving the car, she hit a deer, damaging the vehicle. She then returned the damaged car to National. PurCo, as National s assignee, attempted to collect claims against Koenig on its behalf. Koenig s insurer paid for the damage to the car on her behalf, but refused to pay PurCo for loss of use or the administrative charge. On appeal, PurCo contended that the trial court erred in granting summary judgment to Koenig on its claim for loss of use. The Court of Appeals agreed. Where the damaged party s business is the leasing of its chattel in a profit-making enterprise, and damages are sought for lost rental value, the more appropriate measure of damages is the net profit the owner would have received, had it been able to lease the damaged chattel during the time reasonably needed for repairs, less any expenses saved by the unavailability of the chattel. Here, although the phrase "regardless of fleet utilization" is used after the loss of use provision in the contract, National will still have to prove it suffered an actual economic loss as a result of the unavailability of this particular car during the period reasonably necessary for repairs. Because PurCo submitted some relevant evidence of its loss of use damages, it was error for the trial court to grant summary judgment against PurCo on its loss of use claim. The Court also agreed with PurCo that the trial court erred in granting summary judgment to Koenig concerning its claim for administrative charges. The contract language provided that Koenig would pay National for administrative charges resulting from the loss or damage to the vehicle. Although it does not state an amount, this provision of the contract is enforceable provided that the trial court finds the amount to be reasonable. The Court rejected Koenig s contention on cross-appeal that PurCo is an unlicensed collection agency whose collection activities are governed by the CFDCPA, and thus the trial court was without jurisdiction to consider PurCo s collection action against her. A company taking assignments of debt not in default is not required to obtain a license. PurCo falls within that exemption because at the time National assigned the debt to PurCo, the debt was not in default. The Court also held that the trial court erred in declining to award PurCo its attorney fees and costs incurred in defending against Koenig s counterclaim under the CFDCPA. The term "action" in 12-14- 113(1.5), C.R.S., includes both claims and counterclaims brought under 12-14-113, C.R.S., in a judicial proceeding. Because Koenig brought an unsuccessful counterclaim against PurCo, the statute entitles PurCo to recover its costs and reasonable attorney fees incurred in defending against that counterclaim. Finally, the Court held that in light of the disposition on the merits, any award of costs on a prevailing party theory based on other claims is premature. The summary judgment entered against PurCo on its claims for loss of use and administrative charges was reversed, as was the award of costs and attorney fees. The trial court was directed on remand to determine and award the amount of PurCo s reasonable Otis, Coan & Peters, LLC Page 21 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 appellate attorney fees incurred with respect to the issues on which it succeeded. In all other respects, the judgment was affirmed. No. 09CA0459. Planned Pethood Plus, Inc. v. KeyCorp, Inc. Loan Prepayment Penalty. Plaintiff Planned Pethood Plus, Inc. (Pethood) appealed the summary judgment entered in favor of defendant KeyCorp, Inc. (Keybank) denying Pethood s claim for recovery of a prepayment penalty paid to Keybank to obtain release of a deed of trust. The judgment was affirmed. Pethood is a veterinary clinic owned by two veterinarians. It obtained a commercial loan from Keybank in the amount of $389,000 at a fixed interest rate of 8.3 percent per annum for a term of ten years. The loan was secured by real property owned by the veterinarians, who also executed personal guarantees of the loan. The promissory note contained a clause, prominently displayed near the middle of the first page, allowing Pethood to partially or fully prepay the loan and entitling Keybank to a prepayment penalty if Pethood chose to do so. On appeal, Pethood contended that the trial court erred in granting summary judgment in favor of Keybank because the prepayment penalty was not enforceable. The Court of Appeals disagreed. Although prepayment fees are bargained-for considerations for a contractual right, the promissory note in this case required Keybank to accept prepayment and release the deed of trust if Pethood tendered the outstanding principal and the prepayment penalty. Pethood did so voluntarily, and thus fully performed under the note. In these circumstances, a prepayment penalty is not a type of liquidated damages. Further, the prepayment penalty at issue was not unconscionable. Therefore, the trial court properly found that Keybank was entitled to judgment as a matter of law. No. 09CA0724. Colborne Corporation v. Weinstein. Colorado Limited Liability Company Act Unlawful Distributions Standing Creditors Limited Fiduciary Duty. Plaintiff Colborne Corporation (Colborne) is a creditor of Boulder Partnership, LLC (BP). Defendants ManyMajors Management, Inc., and Business Mechanics, Inc., (collectively, managers) are the managers of BP. The managers sole shareholders, officers, and directors are defendants Kenneth Major and Michael Weinstein (collectively, members), who also are the sole members of BP. Colborne brought this action against defendants, seeking recovery of a debt of more than $200,000 under the Colorado Limited Liability Company Act (LLC Act) and for breach of the common law fiduciary duty owed to creditors, alleging that BP s managers authorized, and its members accepted, distributions that rendered BP insolvent, and were therefore unlawful. On defendants motion, the trial court dismissed the complaint under C.R.C.P. 12(b)(5) for failure to state a claim. The judgment was reversed and the case was remanded with directions. On appeal, Colborne argued that Colorado case law interpreting the language of the Corporations Act providing for directors liability to the corporation to extend standing to sue to creditors also should apply to extend standing to creditors who sue members of an LLC under a statute providing for their liability to the LLC. The Court of Appeals agreed. The LLC Act provides that a member who knowingly receives a distribution that renders the LLC insolvent shall be liable to the LLC. Because the Corporations Act and the LLC Act are closely related legislative schemes, and the reasoning for extending standing to creditors is just as applicable to an LLC as it is to a corporation, creditors of an Otis, Coan & Peters, LLC Page 22 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 LLC, as a group, have standing to sue an LLC member who knowingly receives an unlawful distribution pursuant to 7-80-606, C.R.S. Defendants argued that the dismissal should be affirmed because Colborne did not file suit on behalf of all creditors and did not expressly allege in the complaint that it was the only unpaid creditor. The Court disagreed. Although Colborne did not specifically allege the absence of other creditors, it is not clear from the record that other unpaid creditors exist. Accordingly, the trial court erred in dismissing Colborne s statutory claim for lack of standing. Colborne also argued that the limited fiduciary duty that directors of insolvent corporations have to the corporation s creditors also extends to managers of LLCs. The Court agreed. Managers of insolvent LLCs owe the LLC s creditors a limited fiduciary duty to abstain from favoring their own interests over those of the creditors. The judgment of dismissal was reversed and the case was remanded for further proceedings. No. 09CA0130. Colorado Coffee Bean, LLC v. Peaberry Coffee Inc. Franchise Agreement Exculpatory Clause Fraudulent Nondisclosure Duty to Disclose Rescission Colorado Consumer Protection Act Public Impact Jury Demand Negligent Misrepresentation Bifurcation. Plaintiffs appealed pretrial orders striking their jury demands and bifurcating the trial. They also appealed the judgment entered following a Bench trial dismissing all of their claims against defendants Peaberry Coffee, Inc. (the parent company); its wholly owned subsidiary, Peaberry Coffee Franchise, Inc. (PCFI); William I. Tointon, the sole shareholder of the parent company and its chief operating officer; James T. Orr, the parent company s vice president of franchising; and Perkins Coie, LLP, franchising counsel to the parent company. The judgment was affirmed in part and vacated in part, and the case was remanded with directions. This case arose from plaintiffs purchase of Peaberry Coffee franchises. Plaintiffs brought claims of fraudulent nondisclosure, negligent misrepresentation, alter ego, and violation of the Colorado Consumer Protection Act (CCPA) against the Peaberry defendants. PCFI counterclaimed against seven plaintiffs to recover royalties under the franchise agreement. On appeal, plaintiffs contended that the trial court erred in dismissing their fraudulent nondisclosure claims based on exculpatory clauses in the transactional documents. The Court of Appeals agreed. The general language of the exculpatory clauses did not preclude plaintiffs reasonable reliance arising from nondisclosure of parent company losses, because the relevant clauses did not disclaim reliance on undisclosed but material information. Therefore, the trial court erred in finding reliance as to nondisclosure of this information. Further, allegedly fraudulent nondisclosure of the parent company s losses is not protected by Federal Trade Commission regulations. However, because the trial court s order is unclear as to whether defendants had a duty to disclose this material information, the case was remanded for clarification. If on remand the trial court finds that plaintiffs have established fraudulent nondisclosure, it should make further findings concerning any personal liability of Tointon and Orr, and may enter judgment against one or both of them consistent with those findings. Further, defendants counterclaims for breach of the franchise agreements must fail because plaintiffs elected to rescind the contracts, and PCFI is not entitled to recover appellate attorney fees. Plaintiffs also contended that the trial court erred in its C.R.C.P. 41(b) dismissal of their claim under the CCPA. The Court disagreed. Plaintiffs failed to prove that any unfair or deceptive trade practice significantly impacted the public as actual or potential consumers. Peaberry s Internet posting provided Otis, Coan & Peters, LLC Page 23 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 general information only and specifically disclaimed any offer of a franchise. Further, plaintiffs failed to present any evidence of the relative sophistication and bargaining power of the people who responded to the Internet posting or the sixty-eight individuals to whom an informational packet was sent. Plaintiff did not present any evidence that the franchise program had either predated the Internet posting or continued after the sixty-eight packets were sent. Accordingly, plaintiffs CCPA claim was properly dismissed because they failed to prove public impact. Plaintiffs also argued that the trial court erred in striking their jury demand. However, plaintiffs waived their right to a jury trial in the franchise agreement and, as an agent of a party to the agreement, Perkins Coie properly demanded that the claims against it be tried to the court. Finally, the trial court properly dismissed the negligent misrepresentation claim against Perkins Coie, and the trial court did not err in bifurcating the trial of plaintiffs claims against the Peaberry defendants from those against Perkins Coie to avoid prejudice. No. 09CA0460. Lafarge North America, Inc. v. K.E.C.I. Colorado, Inc. Summary Judgment Duty to Defend Indemnification Duty to Insure. Defendant (K.E.C.I.) appealed the district court s summary judgment ruling that it breached contractual obligations to defend, indemnify, and insure plaintiff (Lafarge). The judgment was affirmed in part and reversed in part, and the case was remanded with directions. Lafarge was the general contractor for a highway construction project administered by the Colorado Department of Transportation. K.E.C.I. provided traffic control services pursuant to a subcontract with Lafarge. Late one night, a motorcyclist drove onto a highway entrance ramp and collided with a piece of road construction equipment that a Lafarge employee had parked in the only traffic lane of the ramp. The motorcyclist died, and his wife, who was a passenger, was seriously injured. Wife sued Lafarge, the Lafarge employee who had parked the equipment, and K.E.C.I. for negligence. Lafarge demanded K.E.C.I. provide it a defense and indemnify it for any liability it might have, invoking the subcontract and K.E.C.I. s insurance policy, on which Lafarge was an additional named insured. K.E.C.I. and the insurer refused. Lafarge settled with wife for $700,000 in return for a release. Lafarge then brought this case against K.E.C.I. and two of its insurers, asserting claims for breach of contract, fraud, and violation of the Colorado Consumer Protection Act. The parties agreed to litigate the issues regarding the interpretation of the indemnity and insurance provisions of the subcontract. Following discovery, they filed cross-motions for summary judgment on these issues. The district court granted Lafarge s motion and denied K.E.C.I. s motion. The district court denied K.E.C.I. s motion for reconsideration, and K.E.C.I. appealed. The Court of Appeals first considered the indemnity clause in the subcontract. The Court concluded that the clause unambiguously requires K.E.C.I. to indemnify Lafarge for Lafarge s own negligence where Lafarge s liability arises out of any incident that is at least partially the result of K.E.C.I. s acts or omissions. However, the Court agreed with K.E.C.I. that the district court erred in determining at the summary judgment stage that K.E.C.I. is liable to Lafarge under the clause. Here, there was only an allegation by the plaintiff in the personal injury case that K.E.C.I. was at fault, which is not enough to trigger the clause on summary judgment. The Court rejected K.E.C.I. s challenge of the district court s conclusion that it breached its duty to defend on the same grounds that it challenged its breach of the duty to indemnify. Following the same Otis, Coan & Peters, LLC Page 24 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 reasoning regarding the breach of the duty to indemnify, K.E.C.I. s duty to defend was triggered because the injured party only need allege facts that could even potentially trigger the obligation to indemnify. The Court looked at K.E.C.I. s obligation to provide insurance. The certificate of insurance that K.E.C.I. provided to Lafarge indicated Lafarge was an additional named insured on K.E.C.I. s comprehensive general liability insurance policy. However, a document K.E.C.I. attached to the certificate indicated that the coverage was excess coverage, not primary. Therefore, the Court agreed with K.E.C.I. that it was error for the district court to conclude it was to provide primary, rather than excess, coverage. However, it disagreed with K.E.C.I. that the coverage was for its own negligence only and not for the negligence of Lafarge. The judgment was affirmed in part and reversed in part, and the case was remanded to the district court for further proceedings. No. 09CA0956. Newflower Market, Inc. v. Cook. Summary Judgment Interpleader Interest on Funds. The Court of Appeals affirmed defendant Cook s appeal of the trial court s ruling of summary judgment for Newflower Market, Inc. (Newflower). Cook owned all of Newflower s stock. In her dissolution of marriage proceeding, she and her former husband (Gilliland) entered into a Memorandum of Understanding (MOU) in December 2005. In May 2007, Cook, Gilliland, and Newflower signed an amended separation agreement that was approved and entered as a court order. In the agreement, Cook transferred 91 percent of her Newflower common stock to Gilliland, retaining 9 percent, which subsequently was reduced to 5 percent. Gilliland signed a promissory note for $4,850,000 payable to Cook (Cook note). Newflower signed a promissory note for $5,750,000 payable to the Gilliland/Cook Family Limited Partnership (FLP), which represented the aggregated separate amounts owed to FLP s partners (FLP note). The agreement provided that on FLP s dissolution, Newflower would execute and deliver separate replacement promissory notes for each FLP partner s share, including one to Cook for $1,939,825 (Cook s individual FLP note). Cook, Gilliland, and Newflower subsequently entered into a settlement agreement in October 2007 that provided Newflower would pay $4,850,000 toward principal on its obligations to Cook on January 2, 2008. It stated Cook "may apply [Newflower s] payment toward[ ] either obligation/note as she deems appropriate and within her sole discretion." Newflower also agreed to pay Cook $1,939,825 principal, plus accrued and unpaid interest on its "remaining indebtedness" to her when it obtained additional funding, but no later than January 2, 2009. An addendum provided this distribution would be held by "a mutually acceptable third party in an interest bearing or investment account." On January 2, 2008, Newflower wired $4,850,000 plus accrued interest to Cook s personal bank account. Gilliland refused to wire the $1,939,825. On January 7, 2008, Cook notified Gilliland that she wished to allocate $1,939,825 of the $4,850,000 payment to Newflower s FLP obligation to her individually, thereby satisfying that obligation. Newflower filed a complaint for interpleader and declaratory relief against Gilliland, Cook, and FLP and, with court approval, deposited $1,939,825 in the court s registry. On cross motions for partial summary judgment, the district court entered judgment for Newflower, because Cook admitted the FLP note was not replaced by new promissory notes payable to FLP s partners, and Cook and Gilliland had failed to designate a mutually acceptable third-party account to hold the $1,939,825. Otis, Coan & Peters, LLC Page 25 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 On appeal, Cook argued the summary judgment rendered meaningless the clause that allowed her to apply payment toward either note. The Court found the language of all the agreements clear and unambiguous. Cook s right to allocate the $4,850,000 payment depended on her individual FLP note being in existence and wholly or partially unpaid at the time the Cook note was paid. Cook s individual FLP note was not in existence when Newflower made the $4,850,000 payment. Cook could not attempt to prematurely satisfy a debt that did not yet exist. Cook then contended she was entitled to interest on the $1,939,825 deposited with the court in the interpleader action. The Court disagreed. The generally accepted rule is that interest ceases to accrue on funds deposited by a stakeholder in an interpleader action during the time the funds are on deposit with the court. This rule applies to statutory interest and the Court extended it to apply to contractual interest. No. 09CA1368. CB Richard Ellis, Inc. v. CLGP, LLC. Garnishment Distribution Constructively Fraudulent Transfer. In this garnishment action, judgment creditor and garnishor, CB Richard Ellis, Inc., a real estate brokerage company (broker), appealed the trial court s order denying its traverse of answers to garnishment filed by the garnishees, who are the only owners of the judgment debtor, CLGP, LLC (LLC). The order was affirmed. The LLC is a limited liability company that was formed in Colorado for the sole purpose of purchasing and selling land in Douglas County (property). The LLC has two members: (1) Gesco Corporation, which is owned by Gerald Student, a real estate manager; and (2) Richard Hatch, a real estate attorney who specializes in real estate lending. The LLC bought the property in 2004 for approximately $1 million. The LLC entered into a listing agreement with the broker to sell the property. Before the time period for the listing agreement expired, Student told the broker that he was taking over responsibility for negotiations with Grand Peaks, a potential buyer. Grand Peaks subsequently purchased the property, and the broker did not receive any commission from the purchase. The garnishees set aside a $200,000 reserve asset to insure the disputed broker fee before distributing the remaining net proceeds to the garnishees. The parties later submitted their dispute to arbitration concerning the broker s commission. The LLC hired outside counsel to litigate the arbitration and paid counsel s fees out of the $200,000 reserve asset. The arbitrator awarded the broker $395,000. The LLC paid broker the remaining $44,500 from the reserve asset, and the broker proceeded to garnish the garnishees. However, the trial court ruled that the distribution from the LLC to the garnishees was not a constructively fraudulent transfer. As a threshold matter, the LLC claimed that the broker failed to preserve its claim under 38-8-106(1), C.R.S. Because the parties tried this issue by consent, the broker s claim was preserved. The broker argued that the trial court erred when it concluded that the distribution from the LLC to the garnishees was not a constructively fraudulent transfer. However, the $200,000 reserve asset was not unreasonable at the time of the transfer, especially in light of the fact that the maximum commission owed to the broker, which was a contingent liability, was $177,000. The trial court applied the proper legal standard when considering this form of constructive fraud, and its finding supported its ruling that the broker did not show that the garnishees should have reasonably foreseen that the distribution would create an unreasonable risk of insolvency. Accordingly, the trial court did not err in denying the broker s garnishment of the garnishees. Otis, Coan & Peters, LLC Page 26 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 No. 09CA1690. Steward Software Company, LLC v. Kopcho. Civil Theft Breach of Contract Breach of Fiduciary Duty Damages Attorney Fees Economic Loss Rule Jury Instructions Copyright. This case involves a dispute between Steward Software Company (SSC) and Richard Kopcho concerning the development of certain software and related marketing materials. A jury found for SSC and against Kopcho on claims for civil theft, breach of contract, and breach of fiduciary duty. It awarded damages on the civil theft claim and nominal damages on the remaining claims. The court awarded SSC treble damages on its civil theft claim, costs, and prejudgment interest, but denied SSC s motion for attorney fees. The Court of Appeals affirmed in part and vacated in part. In June 2006, SSC hired Kopcho s company to help it market a computer program it developed to help the banking industry with tracking assets. The parties signed a nondisclosure agreement. The agreement allowed Kopcho s company the limited right to use the confidential information received to develop a marketing plan. There was no written contract for the marketing work, but Kopcho began performing and SSC began paying. Later in 2006, SSC hired a software development company called Ruffdogs, Inc. to undertake development of the software. There was no written agreement. Shortly thereafter, unbeknownst to SSC, Kopcho purchased Ruffdogs and formed a new corporation (Holonyx) and rolled his various entities into it, including Ruffdogs. In 2007, the preliminary version of the software was completed. As changes were requested, the relationship between the parties began to go downhill. Ultimately, Holonyx registered the copyright for the software program in the name of Ruffdogs. SSC sued Holonyx and Kopcho for breach of contract, breach of fiduciary duty, conversion, and theft. SSC also asserted a replevin claim. The latter claim was litigated and in the course of that litigation, SSC asserted copyright interests. The case was removed to federal court but then remanded by the federal court to the state district court after a finding that the complaint did not raise a federal copyright question. As the case neared trial, jury instructions were tendered, including instructions related to copyright law. The district court ultimately determined that copyright law was inapplicable and thereby precluded Holonyx from pursuing a copyright ownership defense. The jury awarded SSC $168,025 on the civil theft claim. The court trebled those damages, awarded prejudgment interest and costs, and denied the request for attorney fees. Kopcho first argued that Holonyx owned the program under federal copyright law and that ownership is a complete defense to the theft claim. The Court agreed. The jury verdicts did not allow the Court to discern, without speculation, whether it found that the theft was of tangible property, trade secrets, copyrights, or any combination of the foregoing. Therefore, it was error to not allow Kopcho his requested instruction on copyright ownership. Kopcho then argued that it was error for the court to refuse to instruct the jury on the economic loss rule. He contended that the essence of SSC s claims arose out of the agreement between the parties and all alleged losses were economic losses; therefore, SSC could recover only for breach of contract. SSC argued that the rule was inapplicable because there was no signed contract. The Court rejected SSC s contention that a written contract is necessary for the application of the economic loss rule, but left it for the trial court to determine the appropriate manner by which to consider the defense. Otis, Coan & Peters, LLC Page 27 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Kopcho contended that it was error for the trial court to give two additional instructions regarding ownership of the property at issue. The Court considered and rejected this contention, finding that the tendered instructions were encompassed within the elemental civil theft instruction given to the jury and, therefore, it was well within the trial court s discretion to not give them. On its cross-appeal, SSC argued that it was error for the trial court to effectively prevent the jury from awarding the same damages on all three of its claims. The Court agreed and ordered a new trial on damages. SSC also argued it was error to deny its request for attorney fees because they are mandatory to the prevailing plaintiff under the civil theft statute. The Court agreed, holding that, should SSC prevail on its civil theft claim on remand, it is entitled to recover its reasonable fees, including fees in the appeal allocable to the issues on which it prevailed. No. 09CA2488. Day v. Stascavage. Derivative Lawsuit Special Litigation Committee Thoroughness of Investigation. Plaintiffs appealed the trial court s order dismissing their derivative claims lawsuit. The order was reversed. HMC, Ltd., is a Colorado limited partnership formed to invest in real property in the Town of Parachute. Two limited partners, Day and Barnes, brought derivative claims against general partners Rader, Stascavage, and Morse. The claims involved the sale of partnership lots (the property) to Rader. The contract was signed in November 2005 and the sale closed in September 2007. Rader paid $258,000 and assumed obligations of $66,000. The limited partners alleged the sale price was far below the property s fair market value. Garfield County had assessed the property at $258,000, but the limited partners alleged it was worth between $1 million and $4 million. They asserted derivative claims, including breaches of fiduciary duty and civil theft. The general partners responded by agreeing to a court order appointing a special litigation committee (SLC). A Vail lawyer served as the SLC to determine whether the partnership should pursue the claims asserted in the derivative lawsuit. The SLC recommended the claims be dismissed. Based on the SLC report, defendants moved to dismiss the derivative claims and, in response, the limited partners deposed the SLC. The trial court concluded that the SLC was independent and disinterested and followed appropriate investigative procedures. The court dismissed the derivative claims. The limited partners appealed. Derivative suits raise two issues: (1) a plaintiff s right to sue on behalf of an entity; and (2) the merits of the claim. The question on appeal was whether the SLC s report required dismissal of the claims. Colorado follows New York s approach, which provides that a court may not second-guess [the SLC s] business judgment in deciding not to pursue the derivative litigation. However, the court must determine that the SLC was independent and employed reasonable procedures in his or her analysis. The Court of Appeals held that the burden of persuasion lies with the party seeking dismissal based on the SLC s report, and that the SLC in this case was independent and impartial. The Court examined whether the SLC s investigation was sufficiently thorough to support his conclusions, and concluded that it was legally inadequate. Although the SLC spent thirty hours on his investigation and wrote a fourteen-page report, he conducted no independent investigation into whether the property was sold at below fair market value. The SLC did not attain an expert appraisal of the property s value; instead, he accepted, without any scrutiny, the general partners reliance on the tax Otis, Coan & Peters, LLC Page 28 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 assessment. The Court held this constituted a procedurally inadequate investigation. Accordingly, the order dismissing the derivative claims was reversed and the case was remanded for further proceedings. 8. FIRST AMENDMENT No. 08SC351. Curious Theatre Company v. Colorado Department of Public Health and Environment. First Amendment Regulation of Conduct. Several nonprofit theaters petitioned the Supreme Court for review of the court of appeals judgment affirming the denial of their motion for preliminary injunction. Their action against the Colorado Department of Public Health and Environment seeks both a judgment declaring Colorado s ban on theatrical smoking to be an unconstitutional infringement on their freedom of speech and an order enjoining its enforcement. The district court denied petitioners motion for preliminary injunction on the ground that smoking, even in the theatrical context, does not amount to expressive conduct of a type that would be subject to either state or federal constitutional protections for speech. The court of appeals concluded that theatrical smoking was expressive conduct, but affirmed the district court on the ground that the ban was constitutional. The Court affirmed the judgment of the court of appeals. Even assuming that theatrical smoking can amount to protected expressive conduct under some circumstances, the statutory ban does not impermissibly infringe on petitioners constitutionally protected freedom of expression. The ban is content neutral and narrowly tailored to serve the state s substantial interest in protecting the public health and welfare. Nos. 09SA224 & 90CV1200. Dallman v. Ritter, Governor of Colorado; Richie v. Ritter, Governor of Colorado. First Amendment Campaign Contributions Equal Protection Labor Organizations. The Supreme Court held that plaintiffs are likely to succeed on the merits of their claim that Amendment 54 is unconstitutional under the First Amendment, because certain provisions of the amendment are unconstitutionally overbroad, vague, and violate equal protection. After striking the unconstitutional portions of the amendment, the Court held that the remaining provisions do not constitute a meaningful legislative enactment and, therefore, the entire amendment must be purged from the Colorado Constitution. Accordingly, the Court affirmed the trial court s preliminary injunction and remanded the case for further proceedings. 9. GOVERNMENT No. 08SC639. Cash Advance v. State of Colorado Tribal Sovereignty No. 08SC1073. Wolf Ranch, LLC v. City of Colorado Springs. Regulatory Impairment of Property Rights Act Legislatively Formulated Fees. The Supreme Court affirmed the court of appeals judgment holding that the drainage fee system employed by the City of Colorado Springs does not trigger the Regulatory Impairment of Property Rights Act. The Court found that the fee assessed to Wolf Ranch, LLC was promulgated by Colorado Springs through legislative process and was uniformly assessed to all property owners occupying the Otis, Coan & Peters, LLC Page 29 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 drainage basin. Accordingly, the Court held that the drainage fee system falls under the Act s exception for legislatively formulated fees imposed on a broad class of property owners. No. 08CA2659. Denver Post Corp. v. Ritter, Governor of Colorado. Colorado Open Records Act Public Records Personal Cell Phone Bills. Plaintiffs Karen Crummy and her employer, Denver Post Corp., (collectively, the Post) appealed the trial court s judgment dismissing their action to access the cell phone billing statements of Colorado Governor Bill Ritter. The judgment was affirmed. Governor Ritter has an official cell phone that he uses almost exclusively for e-mail, and a personal cell phone that he uses for both personal and official calls. The state pays for Ritter s official cell phone; Ritter pays for his personal phone. The Post requested access to Ritter s personal cell phone bills pursuant to the Colorado Open Records Act (CORA). Ritter s office provided the records from the state-paid cell phone but not the personally paid cell phone, stating that the latter were not public records subject to CORA. The Post filed this action to obtain the bills. The trial court granted Ritter s motion to dismiss for failure to state a claim under C.R.C.P. 12(b)(5), finding that the Post had not shown the requested documents were likely public records. The Court of Appeals affirmed the judgment on different grounds. The Court held that when the custodian of the records is an individual with both private and official capacities, and it is disputed in which capacity he or she holds the record, the requesting party has the burden of showing the record is a public record as defined by CORA. The requesting party must show that the record likely was "made, maintained, or kept" by the custodian in his or her official capacity. The Court found that the Post did not allege facts that, viewed most favorably to it and accepted as true, showed that Ritter likely "made, maintained, or kept" the bills in his official capacity. Ritter did not "make" the bills; the service provider did. Ritter did not "maintain" the bills, because "maintain" means to keep in good repair. Here, all Ritter did was "keep" the bills, and he did so only to verify the amounts he owed and to pay them. This is a personal, not an official, function. The dismissal was affirmed. No. 09CA0132. Colorado Mining Association v. Huber, Exec. Dir., Colorado Dep't of Revenue, Motor Vehicle Division. Colorado Taxpayer Bill of Rights Coal Severance Tax Rate Voter Approval. This appeal involved a constitutional challenge under the Colorado Taxpayer Bill of Rights (TABOR). Plaintiffs challenged the Department of Revenue s (Department) right to implement the pre-tabor statute that adjusts the coal severance tax rate based on a general economic index. Since 1977, Colorado has imposed a tax on the "severance" (removal) of coal from the earth. The numerical tax rate has changed over the years. However, the formula for calculating it has remained constant: a base rate (currently $0.36 per ton) is adjusted periodically based on changes to a broad economic index (now called the Producers Price Index or PPI). The statutory formula was in effect when Colorado voters passed TABOR in November 1992. In 2007, the Department promulgated Regulation 39-29-106, stating, in accordance with the statute, that the tax rate would be adjusted based on the PPI. Plaintiffs filed this action in January 2008, shortly after the new rate took effect. The district court entered summary judgment, rejecting their challenge and concluding that the adjustments were neither a "tax rate increase" nor a "tax policy change" covered by TABOR. Otis, Coan & Peters, LLC Page 30 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 On appeal, plaintiffs contended that a taxpayer vote was required because the Department s decision (after a fifteen-year hiatus) to use the statutory formula (1) caused a "tax rate increase"; and (2) was "a tax policy change directly causing a net tax revenue gain." The Court of Appeals agreed with the first contention and therefore did not address the second. Applying the statutory formula increased the coal severance tax rate (initially from $0.54 to $0.76 per ton) without voter approval. Therefore, TABOR precludes increasing the coal severance tax rate without voter approval. The Department argued that the increases fall outside TABOR because they occurred automatically based on an outside economic index. The Court disagreed. A tax rate increase requires voter approval whether a tax rate is increased directly by a statute or indirectly through application of a statutory formula tied to an outside index beyond the taxpayers control. The Court also rejected the Department s contention that the statute simply accounts for the effects of inflation and thus does not violate the purposes of TABOR. TABOR s plain language requires voter approval to increase tax rates. The judgment was reversed and the case was remanded with directions. On remand, the district court is instructed to enter summary judgment for plaintiffs, invalidating the challenged tax rate increases, and to conduct any further proceedings necessary to implement that judgment. No. 09CA0133. City of Fort Morgan v. Eastern Colorado Publishing Company. Colorado Open Records Act Work Product Advisory Elected Officials Disclosure. Defendants (collectively, The Times) appealed the district court s judgment finding that the City Council of the City of Fort Morgan (City) was not required to provide The Times with certain documents created in connection with the City Council s performance evaluation of the City Administrator, Michael Nagy, under the Colorado Open Records Act (CORA). The judgment was affirmed. The Times challenged the district court s ruling that the requested documents are work product materials. Specifically, The Times submitted a CORA request to the City Clerk for a copy of each Individual Review Form completed by the seven City Council members, as well as a copy of Nagy s personal Review Form, all of which were used to arrive at the City Council s recent rating of Nagy s performance. CORA specifically excludes "work product prepared for elected officials" from the meaning of "public records." It is the policy of the City Council for the City Attorney to compile a summary of the individual evaluation forms completed by the City Council members. The City Council members then reach a final decision by voting on the performance evaluation in open session. After the final evaluation is reduced to written form and signed, the City Attorney destroys the City Council members' individual evaluation forms pursuant to policy. The Court of Appeals held that the City Council members individual review forms and the spreadsheet the City Attorney prepared based on those forms are advisory. Because the review forms and the spreadsheet do not express a final decision by any City Council member, the documents at issue are not subject to CORA s disclosure requirements under the statutory work product exception. Therefore, the City met its burden of showing that the documents at issue are work product and therefore need not be disclosed under CORA. No. 09CA0425. Plains Metropolitan District v. Ken-Caryl Ranch Metropolitan District. Requirements of a Metropolitan District Service Plan Counterclaim Revival Statute. This dispute pertains to the duty to construct neighborhood recreational facilities and involves adjoining metropolitan districts in Jefferson County. The claims were filed by Ken-Caryl Ranch Metropolitan Otis, Coan & Peters, LLC Page 31 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 District (KC) and three of its taxpayers against Plains Metropolitan District (Plains). After a Bench trial, the trial court entered judgment for Plains. The judgment was reversed and the case was remanded. All property owners within KC and Plains districts must belong to the Ken-Caryl Ranch Master Association (Association). Plains was created as a special district by a 1986 court order approving a 1985 service plan that had been reviewed and approved by Jefferson County authorities. The 1985 service plan provided that "[t]he recreational facilities to be designed and constructed by [Plains] will include a swim and tennis facility and a ball park" consisting of three fields. These facilities were to be operated, maintained, and ultimately owned by the Association. KC was created by a 1988 court order and was located within the Ken-Caryl community, but its boundaries did not overlap with the Plains district. By 1996, Plains had not built the recreational facilities. In January 2002, Plains indicated it would dissolve in 2004 (when its existing bond debt was due to be paid off) without building the recreational facilities. A lawsuit followed. KC s claims regarding the building of the recreational facilities were asserted as counterclaims to Plains lawsuit challenging KC s expansion of its district boundaries to include property within Plains. Plains lawsuit was settled, with the districts agreeing to maintain their prior boundaries. At a Bench trial on the counterclaims, the court ruled that the service plan was a "permissive guide" that did not require Plains to build the facilities. The Court of Appeals disagreed, holding that the 1985 service plan language regarding the building of recreational facilities is mandatory, because it uses the word "will" throughout. The Court also held that courts can compel special districts to comply with mandatory terms of their service plans under the Special District Act. 32-1-207(1), C.R.S., requires special districts to conform to their approved service plans "so far as practicable." The Court remanded the case to the trial court to determine whether it remained practicable for Plains to build the facilities. Plains argued that the claims were time-barred because KC knew or should have known by the 1990s that Plains would not build the facilities. The Court declined to address this because KC properly raised its challenges as counterclaims filed pursuant to the counterclaim revival statute, 13-80-109, C.R.S. The statute allows a party to plead a stale claim if the counterclaim arises out of the transaction or occurrence that is the subject matter of the opposing party s claim. The Court read this as requiring the counterclaim to be compulsory. A counterclaim is compulsory if it is "logically related" to the subject matter of the opposing party s claim. The Court found that KC s counterclaim met this test because the complaint that KC violated the Special District Act by trying to expand its boundaries required an examination into the nature of the services provided by each district. The Court also rejected Plains argument that because its claims were dismissed, the counterclaims should then become time-barred. No. 09CA1230. Students for Concealed Carry on Campus, LLC v. Regents of the University of Colorado. Concealed Carry Act Application to Universities Colorado Constitution, art. II, 13. The Board of Regents, Chiefs of Police, and Chancellors of the University of Colorado (collectively, Regents) enacted Weapons Control Policy 14-I (policy) prohibiting the possession of firearms on or within any University of Colorado campus, except for peace officers or others who have written permission from the Chief of Police. It allowed for firearms storage by campus police for students or employees. The minimum disciplinary sanction for a student intentionally or recklessly violating the policy is expulsion; for an employee, the sanction is termination. Otis, Coan & Peters, LLC Page 32 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Plaintiffs filed a complaint alleging that the policy violated the Concealed Carry Act (CCA) and the Colorado Constitution s Right to Keep and Bear Arms Clause. The trial court granted the Regents C.R.C.P. 12(b)(5) motion to dismiss for failure to state a claim. Plaintiffs appealed. The Court of Appeals reversed the ruling of the district court and remanded the case for further proceedings. Section 18-12-214(1)(a), C.R.S., "authorizes the permittee to carry a concealed handgun in all areas of the state, except as specifically limited by this section." The Court found that the plain language makes the statute applicable to "all areas of the state" and public universities are not on its list of exceptions. The Court also agreed with plaintiffs that the policy could be an unreasonable regulation of the state right to keep and bear arms. It concluded that a "reasonable exercise" test is the appropriate test for evaluating Colorado Constitution Article II, 13 challenges. Under that test, the allegations made by plaintiffs that the policy unreasonably infringes on their right to bear arms in self-defense states a claim for relief that cannot therefore be dismissed under Rule 12(b)(5). The judgment was reversed. The case was remanded for reinstatement of plaintiffs claims. No. 09CA0822. Colorado Consumer Health Initiative v. Colorado Board of Health. Patient Copy Rule Colorado Board of Health Health Insurance Portability and Accountability Act Summary Judgment Undisputed Facts. In this declaratory judgment action challenging the Colorado Board of Health s "patient copy rule," plaintiff, the Colorado Consumer Health Initiative (CCHI), appealed the summary judgment entered for defendant, the Colorado Board of Health (CBH), as well as the denial of its cross motion for summary judgment. The trial court s order denying CCHI s summary judgment motion was affirmed, its order entering summary judgment for CBH was reversed, and the case was remanded for further proceedings. CBH is a state regulatory board that has the authority to adopt and amend rules regarding public health. CBH s rule, generally known as the "patient copy rule," establishes the fees that health-care facilities can charge for providing copies of a patient s medical records. CCHI filed a complaint for declaratory relief challenging CBH s rules amending the patient copy rule in 2001 and 2008. On cross motions for summary judgment, the court granted CBH s motion and denied CCHI s motion. CCHI contended that because the patient copy rule does not comply with the federal Health Insurance Portability and Accountability Act (HIPAA), the trial court erred in entering summary judgment for CBH and against CCHI. When HIPAA took effect in 2003, the portion of the 2001 rule that applies to HIPAA-covered individuals, which the Board readopted in the 2008 rulemaking, was required to come into compliance with HIPAA. To comply with HIPAA, the portion of the patient copy rule that applies to HIPAA-covered individuals must be cost-based and must not include costs beyond supplies for and the labor of copying. Here, neither CCHI nor CBH provided the trial court with undisputed facts demonstrating that it was legally entitled to summary judgment regarding the patient copy rule s compliance with HIPAA; therefore, neither party was entitled to summary judgment on this issue. CCHI also contended that the trial court erred in entering summary judgment for CBH and against CCHI on the issue of the patient copy rule s compliance with Colorado law. Colorado law provides that health-care facilities must furnish copies of medical records to the patient "upon the payment of the reasonable costs." Here, neither CCHI nor CBH provided the trial court with undisputed facts demonstrating that it was legally entitled to summary judgment regarding the patient copy rule s compliance with Colorado law; therefore, neither party was entitled to summary judgment on this issue. Otis, Coan & Peters, LLC Page 33 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 No. 09CA1066. Town of Erie v. Town of Frederick. Annexation Proper Notice of Hearings. The Court of Appeals affirmed the trial court s approval of annexations by defendant. The Court remanded for calculations of attorney fees and costs. In January 2007, the mayor of the Town of Frederick (Frederick), Eric Doering, executed four petitions to annex land known as the Yardley Wetlands, which are located in the southwest portion of Frederick s planning area and are bisected by State Highway 52. Frederick s Town Board approved the petitions and adopted resolutions in March. In April, the Town of Erie (Erie) submitted four motions for reconsideration regarding the annexations, which the town board denied the next week. However, Frederick repealed the annexations because it had failed to publish proper notice. In May, after providing notice, Frederick again adopted resolutions adopting the Yardley Wetlands. Erie submitted another set of motions for reconsideration, which also were denied. On May 25, 2007, a group of landowners known as SMT sued Frederick over the annexations. Erie also sued, and the cases were consolidated. SMT was dismissed for lack of subject matter jurisdiction, a trial was held, and judgment was entered in favor of Frederick in April 2009. Erie appealed. Notice to abutting landowners of an annexation hearing under the Municipal Annexation Act (Act) must be given ninety days before the hearing. An inadvertent failure to comply with this notice provision may be excused. Erie argued the trial court erred in finding that Frederick s short notice to landowners was inadvertent. The Court disagreed. One provision of the Act requires that a hearing be held thirty to sixty days after the effective date of a resolution setting an annexation hearing, and that notice be published at least thirty days prior to the hearing. Another provision requires annexations using a public road to achieve contiguity (as was the case here) to provide ninety days written notice to abutting landowners. The section also provides: "Inadvertent failure to provide such notice shall neither create a cause of action in favor of any landowner nor invalidate any annexation proceedings." Only the ninety-day notice was at issue on appeal. The Court concluded, in affirming the trial court, that the evidence in the record supported the trial court s finding that the failure to give ninety days' notice was inadvertent. The Court also affirmed the trial court s legal conclusions: (1) that Erie did not have standing to raise issues on behalf of third parties; (2) that contiguity for an annexation is not affected by the existence of a public right-of-way and that consent is not required from the owners of such a public right-of-way; (3) that Frederick s comprehensive plan, updated annually, satisfied the Act s requirement for a plan of development even though it was not titled "Three-Mile Plan"; that Frederick s petitions substantially complied with the Act even though they had minor deficiencies (not having four copies of the annexation maps, not having an address for Frederick s mayor or a date accompanying his signature). Finally, the Court agreed with Frederick that it was entitled to its reasonable appellate attorney fees and costs. No. 09CA1541. Bruce v. City of Colorado Springs. Single Subject Ordinance Disqualification of Trial Judge. This was an appeal of a trial court order issued after remand from an earlier appeal to the Court of Appeals (Bruce I), which concluded that the City of Colorado Spring s (City) single subject ordinance is not unconstitutional and that plaintiff s petition for an initiated ordinance violated the single subject Otis, Coan & Peters, LLC Page 34 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 rule. Plaintiff also appealed the trial court s order denying his motion seeking disqualification of the trial court judge. The Court affirmed. Plaintiff had unsuccessfully attempted to place an initiative on the municipal ballot intended to prevent the City s use of non-business enterprises to serve as "fronts for traditional governmental public works projects paid for by force fees (taxes) outside TABOR s spending limit." Plaintiff argued that the City s single subject ordinance is unconstitutional because it was adopted without first holding a public election to allow voters to decide the matter through a state constitutional amendment and because it violates the right to petition. The Court disagreed. Colo. Const. art. XX, 6, grants a home rule city or town broad powers, including all those of the General Assembly, with regard to local and municipal electoral matters. Colo. Const. art. V, 1(9), also permits cities to provide for the manner of exercising the initiative and referendum powers as to their municipal legislation. The City is authorized to enact ordinances establishing the manner in which municipal legislation is exercised, which clearly includes ordinances that require initiatives submitted for voter approval to contain only single subjects. The Court adopted the reasoning of the Tenth Circuit in Campbell v. Buckley, 203 F.3d 738, 746-47 (10th Cir. 2000), in further finding that a single subject requirement does not violate the right to petition. The Court rejected plaintiff s argument that the trial court erred in concluding that his initiative contains more than a single subject in violation of the City s ordinance. An initiative violates the requirement when it (1) relates to more than one subject and (2) has at least two distinct and separate purposes. The Court agreed that the initiative contained more than one subject with distinct and separate purposes. Finally, the Court rejected plaintiff s contention that the trial judge should have disqualified himself. The test under C.R.C.P. 97 is whether the motion and supporting affidavits allege sufficient facts from which it may reasonably be inferred that the judge is prejudiced or biased, or appears to be prejudiced or biased, against a party to the litigation. Plaintiff s motion was accompanied by his own affidavit alleging the trial judge was biased and prejudiced against him based on his prior rulings and his facial expressions. The motion was insufficient to warrant recusal. No. 09CA1663. Thompson Creek Townhomes, LLC v. Tabernash Meadows Water and Sanitation District. Summary Judgment Specific Performance Regarding Water Taps Governmental Immunity From Specific Performance. Thompson Creek Townhomes, LLC (Thompson Creek) filed a suit for breach of contract and promissory estoppel against the Tabernash Meadows Water and Sanitation District (District), seeking specific performance and money damages for the District s failure to reserve water taps for Thompson Creek s residential development. The District filed a motion to dismiss, which the court considered a motion for summary judgment because the underlying operative facts were undisputed. The court granted summary judgment, dismissing Thompson Creek s specific performance and promissory estoppel claims; the remaining claims were dismissed by stipulation. The Court of Appeals affirmed the lower court s decision. In 2005, First Community Bank (Bank) acquired a parcel of real property known as Lot 16 through foreclosure. The District then had a policy of reserving water and sewer taps for landowners who paid "availability of service charges." These charges were based on 50 percent of the monthly cost for the sewer and water service, and were to be paid quarterly. When the Bank acquired the Lot, these charges Otis, Coan & Peters, LLC Page 35 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 had not been paid for approximately three years. The Bank paid past due amounts to the District when it foreclosed, but it elected to defer any newly accumulating charges until the lot was sold. In 2006, Lot 16 was sold to Thompson Creek. Before the closing, the District announced that it would no longer reserve taps in exchange for availability of service charges and would reserve them only if they were purchased outright. The District notified the Bank that no taps would be reserved for the Lot until they were purchased. The closing occurred in early 2007. The Bank tendered payment for the accrued availability of service charges on closing, but the payment was rejected by the District. Thompson Creek filed suit, asserting claims for breach of contract and promissory estoppel, seeking specific performance and money damages. Thompson Creek appealed the judgment dismissing the claim for specific performance. Thompson Creek argued that a contracting party may seek specific performance against a governmental entity, notwithstanding governmental immunity, if the performance it seeks involves a non-core governmental power. Thompson Creek contended that a contractual obligation to reserve water taps is such a non-core governmental power. The Court disagreed, finding no exception for governmental immunity from specific performance for such so-called non-core powers. The judgment was affirmed. No. 09CA1824. Sensible Housing Co., Inc. v. Town of Minturn. C.R.C.P. 106 Annexation Jurisdiction Standing. Plaintiff Sensible Housing Company, Inc. (Sensible) appealed the district court s order dismissing on jurisdictional grounds its complaint against defendant Town of Minturn (Minturn) for approving the annexation of nine parcels of land allegedly owned by defendants (collectively, Ginn Battle). The order was reversed and the case was remanded with directions. In November 2005, Ginn Battle submitted to Minturn petitions for annexation of nine parcels of land in Eagle County (disputed properties). Prior to and during the annexation proceedings, Ginn Battle was litigating title to the disputed properties with Sensible in Eagle County District Court. At the commencement of the annexation proceedings, Sensible s predecessors in interest sent Minturn letters alerting the town of the litigation and objecting to the annexation petitions. Following Minturn s annexation of the disputed properties, Sensible filed this action in Eagle County District Court, alleging that Minturn exceeded its jurisdiction and abused its discretion by approving annexation when title to the disputed properties was being litigated. On June 3, 2009, the district court granted partial summary judgment to Ginn Battle in the title proceeding. Sensible appealed the judgment. On July 21, 2009, the district court dismissed the present case for lack of subject matter jurisdiction. Relying solely on its June 3 order, the court concluded that under 31-12-116, C.R.S., "Sensible... has no standing, because it is neither a landowner nor a qualified elector." On appeal, Sensible argued it was error to find that it lacked standing based on the court s decision in the title matter. The Court of Appeals agreed. Only a landowner or a qualified elector in the area proposed to be annexed has standing to request judicial review of a municipality s annexation proceedings. The Court looked to the requirements for claim or issue preclusion to apply. Both require finality of a prior judgment. Finality necessitates an opportunity for review. Pronouncing a judgment final while it still is pending negates the finality requirement. Because Sensible had appealed the June 3 order, it was not a final order and it was error for the district court to rely on that order to determine that Sensible lacked standing. The order of dismissal was reversed and the case was remanded with Otis, Coan & Peters, LLC Page 36 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 directions to return the matter to Minturn to vacate those annexation ordinances related to the disputed properties and to stay annexation proceedings pending the outcome of the title litigation. No. 09CA2058. Fischer v. City of Colorado Springs. Multiple Fiscal Year Financial Obligation. Plaintiff appealed the grant from a motion for judgment on the pleadings and dismissal of the complaint. The Court of Appeals affirmed in part, reversed in part, and remanded the case. The City of Colorado Springs (City) and the U.S. Olympic Committee (USOC) entered into an Economic Development Agreement (EDA) for the purpose of developing facilities for use by the USOC. To raise funds, the EDA provided for a lease purchase agreement between the City and the Colorado Springs Public Facilities Authority (PFA), a nonprofit corporation operated by City officials. Under the lease purchase, the City authorized the PFA to issue certificates of participation. With the proceeds, the PFA was to purchase from the City the Police Operations Center and Fire Station No. 8, assigning its rental income to the investors who had purchased the certificates. The lease between the PFA and the City was to be annually renewable, subject to future city council decisions to appropriate money to fund it. The City was to use the revenue from the sale of the police and fire stations to acquire and renovate a downtown building and lease it to the USOC for either no charge or for one dollar per year, and then convey it to the USOC for no additional cost after thirty years. Plaintiff challenged the validity of the EDA on three grounds: (1) the certificates amounted to a contract obligating the City to commit future revenues, which is prohibited unless first authorized by an election, by the Colorado Constitution and the City s Home Rule Charter; (2) the scheme was an unconstitutional donation to a private corporation; and (3) the EDA conflicted with the PFA s articles of incorporation, which prohibited arrangements not consistent with the Colorado Constitution and the City s Home Rule Charter. The trial court determined the lease purchase agreement does not constitute a general obligation debt or multiple fiscal year financial obligation. It granted the City s motion for judgment on the pleadings and dismissed the complaint with prejudice. On appeal, plaintiff argued that it was error to grant judgment on the pleadings as to whether the certificates could not be issued unless first authorized by an election. In essence, he argued that because future city councils effectively would be obligated to appropriate money from the general fund to renew the City s lease of the police and fire stations each year, an election was required under the Colorado Constitution, Article XI, 6, and the City Charter, 7-90. The Court disagreed. The Constitution and Charter provisions proscribe any arrangement in which the City is contractually obligated to incur a debt, the repayment of which will obligate future city councils to commit revenues from the general fund. Such a constitutional debt arises only if the agreement affirmatively requires the payments to be made. Plaintiff alleged that the City would never walk away from its police and fire facilities. The Court noted that despite the importance of the collateral, the City still could determine each year whether to continue the arrangement. Plaintiff argued the PFA was the alter ego of the City because every member of the PFA was a city council member. The Court noted that the certificates did not pledge any specific source of revenue for Otis, Coan & Peters, LLC Page 37 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 repayment. Therefore, even if the PFA s obligation to the investors could become the City s, the investors remained entitled only to an interest in the annually appropriated lease purchase agreement to the extent the City chose to fund it. The Court concluded that even taking as true plaintiff s allegation that future city councils would face overwhelming political pressure to renew the lease of the police and fire stations, there was no material fact in dispute. An election is not required unless there is an affirmative obligation placed on the City to renew, which is not the case here. The judgment on the pleadings against the plaintiff was affirmed. Plaintiff argued that it was improper to dismiss the remaining claims in his complaint, specifically that the EDA provides for an unconstitutional gift to the USOC and the PFA s articles of incorporation do not authorize the issuance of the certificates. The Court agreed that further proceedings were required. The trial court essentially determined, following a status conference, that it only had to reach the issue of whether an election was required. Plaintiff never abandoned his other claims and continued to raise them; therefore, they were remanded for consideration by the trial court in the first instance. No. 09CA1713. Churchill v. University of Colorado at Boulder. Wrongful Termination Tenured Professor Quasi-Judicial Immunity C.R.C.P. 106 42 U.S.C. 1983 First Amendment Equitable Remedies Adverse Employment Action. In this employment law case, Professor Ward Churchill appealed the trial court s judgment in favor of the University of Colorado (University) and its Board of Regents. The judgment was affirmed. Churchill was a tenured professor in the University s Department of Ethnic Studies. After Churchill s essay in which he compared the victims of the 9/11 World Trade Center terrorist attack to Nazi war criminals was made public, the University of Colorado Board of Regents unanimously approved a resolution supporting an investigation into Churchill s work. An Investigative Committee was later formed. The Committee found by a preponderance of the evidence that Churchill had committed research misconduct. Churchill s tenure was terminated based on these findings. Churchill brought claims for wrongful termination, in violation of his First Amendment rights and his rights under 42 U.S.C. 1983. During trial, the University moved for a directed verdict on Churchill s unlawful investigation claim, which the trial court granted. The jury found that the University and its Board of Regents had not shown by a preponderance of the evidence that Churchill would have been dismissed for reasons other than his exercise of free speech. However, the jury awarded Churchill only $1 in past economic loss. Having preserved the defense of quasi-judicial immunity, the University filed a post-trial motion for judgment as a matter of law. Churchill filed a post-trial motion for reinstatement to his position. The trial court granted the University s motion, finding that the Board of Regents and the University were entitled to quasi-judicial immunity. The trial court further ruled that Churchill was not entitled to reinstatement or front pay. On appeal, Churchill argued that the trial court erred by granting the University s motion for judgment as a matter of law because the Board of Regents was not entitled to quasi-judicial immunity. The process employed by the Board of Regents incorporated many of the characteristics of the judicial process. The Board of Regents is empowered by the Colorado Constitution and by statute to enact the laws governing the University. As an independent and elected board, the University s Board of Regents is not part of the executive or legislative branches, which assures that they can conduct their functions without harassment or intimidation. The entire process employed by the Board of Regents followed strict Otis, Coan & Peters, LLC Page 38 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 guidelines under laws promulgated by it, afforded adequate notice of public hearings, and invoked an adversary process in which Churchill was represented by counsel and permitted to introduce evidence, examine witnesses, and make argument. Therefore, the grant of absolute immunity to the Board of Regents was appropriate, and the court s review pursuant to C.R.C.P. 106 was proper. Churchill also contended that quasi-judicial immunity does not apply to equitable remedies under 42 U.S.C. 1983, and neither the University nor the Board of Regents was immune from his request for reinstatement and front pay. The term judicial officer found in 1983 extends to quasi-judicial actors, thereby barring claims for injunctive relief. Additionally, Churchill s claim for reinstatement or front pay fell within the trial court s considerable discretion to fashion equitable remedies. Therefore the trial court did not err in concluding that quasi-judicial immunity barred Churchill s claims. Churchill also argued that the trial court erred in entering a directed verdict on his 42 U.S.C. 1983 First Amendment retaliation claim. Specifically, he claimed that his First Amendment rights were violated because his exercise of free speech caused the investigation and argued that the investigation was retaliation for exercising his First Amendment rights. However, the record reflects that at all times pertinent to the investigation Churchill continued to be paid his normal pay and benefits and continued to hold his position as professor with tenure. The Court concluded that Churchill did not establish that the University s investigation constituted an adverse employment action. 10. INSURANCE LAW No. 09SC195. Nunn v. Mid-Century Insurance Company. Insurance Settlement Duties Bad Faith Stipulated Judgment Covenant Not to Execute Damages. In this case arising out of an automobile accident, Nicole Nunn, an injured victim, and Bryan James, the driver, entered into an agreement that included a pretrial stipulated judgment in the amount of $4 million, and an assignment to Nunn of any claims James had against his insurer, Mid-Century Insurance Company (Mid-Century). In exchange, Nunn signed a covenant not to execute on the stipulated judgment. In a subsequent action by Nunn as James s assignee, Nunn alleged that Mid-Century had breached its duty of good faith toward James by rejecting her settlement offer of $100,000 and thereby exposing its insured to a judgment in excess of his policy limits. The trial court granted Mid-Century s motion for summary judgment on the ground that the covenant not to execute precluded James from having any actual damages to assign to Nunn, and the court of appeals affirmed. The Supreme Court reversed and adopted the judgment rule, holding that entry of a judgment in excess of liability policy limits, notwithstanding the existence of a covenant not to execute, is sufficient to establish actual damages in a bad faith breach of an insurance contract claim. Because the bad faith claim was dismissed on summary judgment, the Court did not reach the merits of Nunn s claim, but merely held that the basis for granting summary judgment was improper. Otis, Coan & Peters, LLC Page 39 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 No. 10SA34. Radil v. National Union Fire Insurance Company of Pittsburg, PA. Follow-Form Endorsement Excess Insurance Uninsured/Underinsured Motorist Coverage Arbitration Agreement Litigation-Based Waiver Defense. In this original proceeding, the Supreme Court affirmed the trial court s order compelling arbitration of an injured employee s claim for underinsured motorist benefits from her employer s excess liability insurer, thereby discharging the rule in part. The Court reversed the trial court s order directing the arbitration panel to determine the excess liability insurer s defense of litigation-based waiver, thereby making the rule absolute in part. Jennifer Radil was seriously injured in a work-related car accident. Her employer was insured under a primary commercial policy and under an umbrella policy issued by National Union Fire Insurance Company of Pittsburgh, PA (National Union). The National Union excess policy includes a follow-form endorsement of the primary policy s uninsured/underinsured motorist (UM/UIM) coverage, which in turn includes an arbitration clause applicable to disputes over entitlement to or recoverable amount of UM/UIM damages. National Union argued that the trial court erred in compelling arbitration of Radil s claim for UIM benefits because its follow-form endorsement does not bind it to the arbitration agreement contained in the underlying policy. National Union further asserted that, even if it is bound, Radil waived her right to compel arbitration and the trial court correctly directed the arbitration panel to determine National Union s litigation-based waiver defense. Absent express language defining the coverage endorsed or a disclaimer of particular terms or conditions, the excess insurer s follow-form endorsement incorporates the terms and conditions that define the underlying coverage. Here, the follow-form endorsement of the underlying UM/UIM coverage contains no limiting language; therefore, National Union s UM/UIM coverage is defined by the terms and conditions, including the arbitration clause, of the underlying UM/UIM coverage. Accordingly, National Union is subject to a valid arbitration agreement. Absent the parties clear intent to the contrary, litigation-based waiver is an issue the trial court, not an arbitrator, properly determines. In this case, the issue is outside the limited scope of the arbitration clause because a litigation-based waiver is a procedural defense unrelated to the insured s entitlement to or amount of UM/UIM damages. Accordingly, the trial court properly determined the issue. Nos. 08CA2021 & 09CA0080. Reyher v. State Farm Mutual Automobile Insurance Company. No-Fault Act Medical Bills Standing Assignment Class Certification. In this action concerning the payment of medical bills under the Colorado Automobile Accident Reparations Act (No-Fault Act), plaintiffs Pauline Reyher and Dr. Wallace Brucker appealed four separate orders of the trial court. The orders were reversed in part and the case was remanded with directions. In October 2001, Reyher was injured in an automobile accident and required medical treatment. At the time, she was insured under a no-fault insurance policy issued by State Farm Mutual Automobile Insurance Company (State Farm). Reyher subsequently received treatment from Dr. Brucker, and State Farm compensated Dr. Brucker for the amount it deemed reasonable pursuant to the Sloans Lake Auto Injury Management program (Sloans Lake), the database system it used to compare charges for similar services in the provider s geographical area. Reyher and Dr. Brucker filed suit against State Farm and Sloans Lake. The trial court granted State Farm s summary judgment motion. Otis, Coan & Peters, LLC Page 40 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 On appeal, plaintiffs contended that the trial court erred in dismissing Reyher s claims because she lacked standing. Reyher has a legally protected interest in avoiding financial liability for expenses covered by her policy. Thus, to the extent Reyher paid for covered services, she has standing to seek recovery from State Farm. Dr. Brucker s standing, however, is not clear from the record, and the case was remanded for additional findings on this issue. Plaintiffs also contended that the trial court abused its discretion in denying their motion for class certification. The Court of Appeals agreed. Plaintiffs satisfied (1) the numerosity requirement, by showing that State Farm re-priced bills in 13,747 claims; (2) the commonality requirement, by showing that the putative class members shared many factual and legal issues in common; (3) the typicality requirement, by asserting that the unlawful conduct was directed at all insureds and providers, including plaintiffs; and (4) the adequacy requirement, by showing their interests do not conflict with the classes interests (their entitlement to relief, even if for different amounts, depends on a shared victory over State Farm on the liability issue). In addition, the predominance prong of C.R.C.P. 23(b)(3) was satisfied by plaintiffs ability to prove that State Farm had a company-wide practice that unlawfully affected the class members, and the superiority prong of C.R.C.P. 23(b)(3) was satisfied because the class members and plaintiffs relatively small damages would cause each claim to be too costly to individually litigate. Therefore, the order denying plaintiffs motion for class certification was reversed. The case was remanded with instructions to grant plaintiffs motion to certify the proposed insured class, as well as the proposed provider class if the court determines that Dr. Brucker has standing to serve as the class representative. No. 09CA0830. Travelers Property Casualty Company of America v. Farmers Insurance Exchange. Summary Judgment Additional Insured Coverage for Liability That Arises out of a Commercial Tenant s Use of Leased Premises. This case involved a provision in a commercial liability insurance policy that provides for "additional insured" coverage for liability "arising out of" a commercial tenant s use of leased premises. The Court of Appeals concluded there was no coverage provided to the landlord or its property manager and therefore affirmed the trial court s order granting summary judgment to defendant (Farmers) and against plaintiff (Travelers). Cherry Knolls 99, LLC (Cherry Knolls) owned a shopping center. It entered into a commercial lease agreement to lease suite 290 to a lessee. The lease was signed by Cherry Knolls s property manager, ACF Property Management (ACF). The original lessee later assigned its interest to another entity (tenant), which operated a restaurant there. Tenant obtained a commercial liability insurance policy from Farmers that covered the leased premises, and named "Cherry Knolls c/o ACF Property Management, Inc." as an additional insured. Cherry Knolls and ACF also obtained their own commercial liability insurance policy issued by Travelers. A customer of tenant went to eat at the restaurant and parked her car in the shopping center s parking lot. After eating, while walking in the parking lot to her car, the customer slipped on ice, fell, and was injured. She sued Cherry Knolls and ACF. Travelers accepted defense and tendered a request for defense and indemnity to Farmers. After Farmers declined to defend or indemnify, Travelers settled with the customer. Travelers then brought this action for contribution against Farmers. Both parties moved for summary judgment. The trial court ruled there Otis, Coan & Peters, LLC Page 41 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 was no coverage for the customer s injuries under Farmers policy and granted Farmers motion. Travelers appealed and the Court affirmed. Farmers policy listed Cherry Knolls and ACF as additional insureds, but Farmers policy insured only the leased premises (suite 290), not the common areas such as the parking lot. The Court determined that there was no duty to defend or indemnify, because the customer s injury did not arise "out of the ownership, maintenance or use" of the restaurant. The customer needed to show that the use of the restaurant was integrally related to her activities and the injury at the time of the accident. The Court held that the customer s patronage of the restaurant was not integrally related to her injury at the time she slipped and fell in the parking lot. She could have had the identical injury without visiting the restaurant. No. 09CA0923. Snell v. Progressive Preferred Insurance Company. Automobile Insurance Underinsured Motorist Coverage CRS 10-4-609. Plaintiff appealed the district court s grant of summary judgment in favor of defendant Progressive Preferred Insurance Company (insurer). The judgment was affirmed. In April 2006, plaintiff purchased automobile insurance from insurer, which included uninsured/underinsured motorist (UM/UIM) coverage with limits of $25,000 for each person and $50,000 for each accident. Plaintiff was involved in an accident in her 1995 Suzuki Sidekick and recovered the policy liability limit of $50,000 from the other driver. Plaintiff thereafter made a claim against her own policy for UIM coverage, which was denied by insurer. Plaintiff filed suit against her insurer, and the trial court granted summary judgment in favor of insurer. On appeal, plaintiff argued that the district court erred by granting summary judgment in favor of insurer. Specifically, plaintiff argued that 10-4-609(1)(c), C.R.S., as amended, permitted her to file a UIM claim against insured. Senate Bill 07-256 amended 10-4-609, C.R.S. As amended, 10-4- 609(1)(c), C.R.S., provides that the amount of the coverage available "shall not be reduced by a set off from any other coverage, including... other uninsured or underinsured motor vehicle insurance." The bill also removed language from 10-4-609(2), C.R.S., that had permitted insurers to include policy language prohibiting "stacking" of UM/UIM limits in policies issued to an insured and resident relatives of the insured. Section 4 of the bill provides that it "shall take effect January 1, 2008, and shall apply to policies issued or renewed on or after the applicable effective date of this act." Plaintiff s policy renewed for the period from October 27, 2007 through April 27, 2008, and initially insured a 1987 Chevrolet 510 pickup truck. On January 14, 2008, plaintiff added liability coverage for a 1995 Suzuki Sidekick to the policy. This resulted in a premium increase of $83 for the policy period. Plaintiff made no changes to the coverage limits or to the UM/UIM coverage on the policy. As a matter of law, once plaintiff had procured UM/UIM coverage, the number of vehicles on the policy was immaterial to that coverage, because under Colorado law, the coverage applies to the individuals insured, not to vehicles. Therefore, because plaintiff was not issued a policy and did not renew a policy on or after January 1, 2008, the amendment to 10-4-609(1)(c), C.R.S., did not apply to plaintiff, and she was not entitled to recover UIM benefits pursuant to the terms of her policy with insured. Accordingly, the court properly entered summary judgment for insurer. Otis, Coan & Peters, LLC Page 42 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 No. 09CA1536. Sachs v. American Family Mutual Insurance Co. Insurance Coverage Homeowners Duty to Defend Negligent Misrepresentation Premises Owned Exclusion. In this insurance coverage dispute, plaintiffs Robert and Moira Sachs appealed the summary judgment entered in favor of defendant American Family Mutual Insurance Company (American Family). The judgment was affirmed. On or about October 15, 2004, Stanford and Susan Stevens (buyers) purchased plaintiffs Colorado Springs residence. After the sale, the basement floor of the residence sank by four inches. The buyers subsequently sued plaintiffs for breach of contract, fraudulent misrepresentation, and negligent misrepresentation. On appeal, plaintiffs argued that the district court erred in concluding that American Family had no duty to defend plaintiffs from claims in a lawsuit brought against them by the buyers of their former Colorado Springs residence. The Court of Appeals disagreed. The "premises-owned" exclusion in the policy unambiguously applied to both presently owned and formerly owned premises, which were owned premises not listed on the policy as an "insured premises." Because it is undisputed that plaintiffs owned the Colorado Springs property at the time of their alleged negligent misrepresentation and it was not listed on the policy as an insured premises, the district court correctly ruled that the premises-owned exclusion applied and that American Family had no duty to defend plaintiffs on that claim. Further, the broad language of the premises owned exclusion in plaintiffs policy applied, regardless of whether the negligent misrepresentation claim was characterized as a premises liability or personal tort claim. No. 09CA2179. Roinestad v. Kirkpatrick. Insurance Coverage Ambiguous Pollution Exclusion Clause. Plaintiffs Christopher Roinestad and Gerald Fitz-Gerald appealed from the trial court s summary judgment to the insurer, Mountain States Mutual Casualty Company, holding that the pollution exclusion clause they issued to Tim Kirkpatrick, doing business as Hog s Breath Saloon and Restaurant, precluded coverage. The judgment was reversed. As part of their routine cleaning of the kitchen at Hog s Breath, restaurant employees poured greasy water into the sewer drain outside the bar. Over time, the grease built up in the city s sewer system. In early October 2003, plaintiffs were working to clean out the sewer line near Hog s Breath, but not on its property. Plaintiffs smelled hydrogen sulfide when they opened the manhole and lost consciousness. Fitz-Gerald fell into the manhole and Roinestad lost consciousness when he went in after Fitz-Gerald. Both plaintiffs, along with other workers who managed to rescue the first two men, suffered ongoing health effects. Plaintiffs sued Hog s Breath, and the trial court entered summary judgment for plaintiffs. However, the district court granted summary judgment for the insurer, finding that the pollution exclusion clause in the policy barred coverage. On appeal, plaintiffs argued that the trial court erred in finding that the pollution exclusion clause in the policy issued by insurer to Hog s Breath barred coverage for injuries suffered by plaintiffs. The Court of Appeals agreed. To avoid coverage under the insurance policy at issue, the insurer must demonstrate that plaintiffs injuries arose out of the discharge of a pollutant. Plaintiffs were injured by the hydrogen sulfide gas in the manhole. Hog s Breath, however, did not discharge hydrogen sulfide from its business location. Further, the cooking oil and grease that were discharged from Hog s Breath were not Otis, Coan & Peters, LLC Page 43 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 unambiguously defined as contaminants in the pollution exclusion clause of the policy. Thus, the clause must be construed against the insurer and in favor of coverage. Accordingly, the district court erred in granting summary judgment for the insurer. The judgment of the district court was reversed, and the case was remanded with directions to enter judgment for plaintiffs and to enforce the writ of garnishment. No. 09CA1860. Farmers Insurance Exchange v. Anderson. Underinsured Motorist Insurance Covered Auto Public Policy. The surviving family of Chris Naeve (family) appealed the summary judgment in favor of Farmers Insurance Exchange (Farmers) determining that the Farmers policy issued to Statewide Traffic Control, Inc. (Statewide) did not provide Underinsured Motorist (UIM) coverage here. The judgment was affirmed. This action arose from an auto pedestrian accident in which Chris Naeve, an employee of Statewide, was killed when he was struck by an underinsured vehicle while working on a state highway. At the time of the accident, Naeve was standing in a closed construction zone, approximately fifty feet ahead of the parked truck that he and another employee had driven to the site. The trial court granted summary judgment in favor of Farmers, concluding that Naeve was not insured under the policy. The court held that, even assuming Naeve was occupying the truck at the time of the accident, the truck was not a covered auto under the insurance policy, because Farmers had not been timely notified that Statewide had purchased the truck. On appeal, the family asserted that the court s conclusion denying coverage under the language of the policy was erroneous. The Court of Appeals disagreed. Under the policy s clear and unambiguous terms, the parked truck was not covered under the Farmers policy, because it was not listed as a covered auto and was not timely added to the policy as an after-acquired auto. Further, the Farmers UIM coverage specifically requires that when a corporation is the named insured, an insured is anyone occupying a covered auto. Because Naeve was not occupying the truck when the accident occurred, he was not an insured under the policy; therefore, the trial court did not err in denying UIM coverage under the policy. The family also contended that public policy and the uninsured motorist statute mandate that Naeve was entitled to UIM coverage. The Court disagreed. UIM coverage must be as extensive as liability coverage in terms of whom the policy insures, but the vehicle in question was not a covered vehicle and Naeve was not a covered insured under the policy. Here, public policy and the UM/UIM statute do not operate to provide coverage to Naeve. The family claimed that Naeve had UIM coverage pursuant to the liability section definition of who is an insured, because that provision is ambiguous. Regardless of how broadly insured persons might be read, the restrictive phrase covered auto makes it clear that such a vehicle must be involved. Accordingly, no ambiguity in the liability designation of who is an insured existed. No. 09CA1263. Sanderson v. American Family Mutual Insurance Company. Bad Faith Breach of Insurance Contract Underinsured Motorist Policy. Plaintiff Leonard Sanderson appealed the district court s grant of summary judgment in favor of defendant American Family Mutual Insurance Company (American Family) on his claim for bad faith breach of an underinsured motorist (UIM) policy. The judgment was affirmed. Otis, Coan & Peters, LLC Page 44 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 On October 15, 2003, Sanderson was injured in an automobile accident with Kelly Pierce, who had bodily injury liability coverage of $25,000. Because Sanderson allegedly suffered injuries in excess of that amount, the accident implicated his UIM policy with American Family, which had a $100,000 policy limit. Sanderson and American Family proceeded to arbitration, where the arbitration panel awarded Sanderson $357,387.80 in damages. American Family paid Sanderson the remaining $75,000 policy limit. Sanderson thereafter filed suit against American Family, claiming it had acted in bad faith in handling his claim. The trial court entered summary judgment for American Family. On appeal, Sanderson asserted that the district court applied the wrong legal standard, because the court erroneously viewed the question of whether American Family s defenses were fairly debatable as the beginning and end of the court s inquiry, rather than just as part of the appropriate inquiry. When an insured sues his or her insurer for bad-faith breach of an insurance contract, the insured must prove that (1) the insurer acted unreasonably under the circumstances; and (2) the insurer knowingly or recklessly disregarded the validity of the insured s claim. Fair debatability is part of the analysis of a bad faith claim, but standing alone, it is not sufficient to defeat such a claim. Based on the evidence presented and applying the appropriate standard, no reasonable jury could have found that American Family acted in bad faith. American Family argued that it had a good-faith basis to dispute the amount owed under the policy, because liability for the underlying accident was at issue. The arbitrator found Sanderson 15 percent at fault, which directly impacted American Family s obligation to pay him. In opposing summary judgment, Sanderson presented no evidence to suggest that American Family had contested liability in bad faith or without any reasonable basis for doing so. Therefore, the district court correctly entered judgment as a matter of law for American Family. No. 09CA2173. Dunn v. American Family Insurance. Breach of the Duty of Good Faith and Fair Dealing Flood Water Damage. In this action for breach of the duty of good faith and fair dealing, plaintiffs Michael and Alissa Dunn, individually and as parents and natural guardians of Tanner and Gage Dunn, appealed from the summary judgment entered in favor of defendant American Family Insurance. The judgment was affirmed in part and reversed in part. After a sewer and water backup caused sewage to seep into and flood the Dunns basement, black mold was detected on the basement s furnace wall. Plaintiffs were forced to vacate their home and subsequently suffered from respiratory and other health problems. Because mold had spread throughout the home, plaintiffs ultimately replaced its entire contents, including clothing, furniture, carpeting, and tile flooring. In total, plaintiffs received approximately $340,000 in insurance proceeds from defendant. Plaintiffs contended that the trial court erred in its determination that their bad-faith claims did not fall within the duties owed to them by defendant. Plaintiffs complaint alleged that in the process of resolving their insurance claim, defendant breached its duty of good faith and fair dealing in three respects: (1) by failing to monitor and supervise contractors; (2) by failing to protect plaintiffs from mold contamination and their home against freezing conditions; and (3) by failing to communicate regarding plaintiffs coverage under their policy. The Court of Appeals held that defendant did not have a good-faith duty to supervise an independent contractor, to ensure that the home was adequately heated, or to warn plaintiffs about the potential for mold contamination. The Court determined that defendant did have a good-faith duty to adequately and promptly communicate in response to plaintiffs claim. Therefore, entry of summary judgment against Otis, Coan & Peters, LLC Page 45 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 plaintiffs on that part of their bad-faith claim was premature, and the case was remanded to reinstate and resolve that claim. 11. MOTIONS/TRIAL PRACTICE No. 10SA58. Foundation for Knowledge in Development v. Interactive Design Consultants, LLC. Personal Jurisdiction Minimum Contacts. In this original proceeding, the Supreme Court affirmed the district court s finding that plaintiff, a Colorado nonprofit corporation, adequately established personal jurisdiction in Colorado over defendants. Defendants are Interactive Design Consultants, a Rhode Island company, and its sole owner, Rick DiNobile, a Rhode Island resident. Defendants entered into an agreement with plaintiff to collaborate extensively to create an online educational program. The parties exchanged hundreds of e- mail and telephone communications relating to the agreement. The Court held that, based on the documentary evidence submitted by the parties, defendants numerous contacts with the Colorado corporation are sufficient for the trial court to exercise specific jurisdiction, and personal jurisdiction over defendants is reasonable under the due process clause of the Colorado Constitution. Accordingly, the Court affirmed the trial court s order and remanded the case for further proceedings. No. 10SA20. In re Garrigan v. Bowen, MD. C.R.C.P. 26(a)(2)(B)(I) Expert Disclosure Information Considered by the Expert. In this medical malpractice action, the Supreme Court reversed the trial court s order precluding a defense expert from testifying at trial as a sanction for defendant s failure to produce the raw data underlying a published study co-authored by the expert. The trial court held that the expert had considered the raw data as that word is used in C.R.C.P. 26(a)(2)(B)(I); thus, defendant should have produced the raw data. The Supreme Court held that under C.R.C.P. 26(a)(2)(B)(I), an expert considers information in forming the opinions if the expert reviews the information with the purpose of forming opinions about the case at issue. Here, the expert had analyzed the raw data to perform the study prior to her association with this case, but there was no evidence in the record that she had reviewed the raw data to form her opinions in this case. Because the raw data was not data or other information considered by the witness in forming the opinions, defendant was not required to disclose or produce the data. Accordingly, the trial court erred in excluding the expert s testimony. The Supreme Court made the rule absolute, directed the trial court to vacate its order excluding the expert testimony as a sanction for the failure to produce, and remanded the case for proceedings consistent with this opinion. No. 09SA144. Goodman v. WP Mountain Properties, LLC. C.R.C.P. 60(b) Relief from Judgment C.R.C.P. 4(e) Process Adequacy of Service of Process Excusable Neglect in Failure to Respond to Complaint The supreme court holds that a default judgment was erroneously set aside where the defendant failed to respond to the complaint after service of process was hand delivered to an assistant of defendant s registered agent, but the registered agent failed to find the process papers in his in-box. Service was valid where the process server hand delivered the process papers to an assistant who performed Otis, Coan & Peters, LLC Page 46 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 administrative duties for the registered agent, even though the person served was not the registered agent s primary assistant. Therefore, the trial court had personal jurisdiction over the defendant and the default judgment was not void under C.R.C.P. 60(b)(3). Additionally, because a reasonably careful registered agent would not have neglected to find the process papers and because equitable considerations did not favor the defendant, the defendant s failure to respond to the complaint constituted neither mistake nor excusable neglect under C.R.C.P. 60(b)(1). The supreme court makes absolute the rule to show cause, and directs the trial court to reinstate the default judgment and conduct further proceedings consistent with this opinion. No. 08SC636 Stanton v. Schultz. Issue Preclusion Alternative Judgments. The Supreme Court reviewed the court of appeals determination that a previous federal court ruling does not preclude Schultz s present state malpractice claim against his former attorneys. The federal district court relied on three alternative grounds in denying Schultz s post-conviction motion for a new trial. In affirming the district court s ruling, the court of appeals relied on one of these grounds, expressly declining to consider the remaining two. The Court held that when a trial court relies on alternative grounds in its judgment and the appellate court affirms on only one ground and declines to reach the others, preclusive effect extends only to the ground that was actually considered and relied on by the appellate court. Thus, preclusive effect extends only to the ground actually relied on by the Tenth Circuit, and Schultz may relitigate the other two issues. The judgment was affirmed. No. 09SA216. In re the Marriage of Weis and Bergeron. Civil and Criminal Contempt Bankruptcy Automatic Stay Domestic Support Obligation Effect of Bankruptcy on Contempt Proceedings Property not of the Estate Findings Necessary for Criminal Contempt. In her separation agreement, Melanie Bergeron agreed to pay credit card debts jointly owed with her former spouse, Greg Weis. When she failed to pay them, creditors instituted collection actions against Weis, who then sought contempt citations against Bergeron. The trial court found Bergeron in contempt. Bergeron sought to vacate the contempt order based on the fact that she had filed for Chapter 13 bankruptcy protection while the contempt proceedings were pending and the bankruptcy automatic stay barred the proceedings. The trial court found that the contempt proceedings fit within two exceptions to the automatic stay, one that applies to criminal proceedings [11 U.S.C. 362(b)(1)], and one that applies when payment is sought for a domestic support obligation from property that is not part of the bankruptcy estate [11 U.S.C. 362(b)(2)(B)]. The trial court imposed a sixty-day sentence. The Supreme Court vacated the trial court s order and made the rule absolute. First, while the credit card debts were properly classified as domestic support obligations, there is no evidence that payment of the debts could be collected from non-estate funds. In fact, while imposing the sentence, the trial court found Bergeron was not then able to pay. Second, the contempt proceedings did not fit within the exception for criminal proceedings, because they were primarily civil in nature, rather than criminal. The contempt could have been purged. The proceedings were primarily designed to vindicate the interests of a third party, rather than the dignity of the court. Findings necessary to a Otis, Coan & Peters, LLC Page 47 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 criminal contempt, as required by In re the Marriage of Nussbeck, 974 P.2d 493, 498 (Colo. 1999), were not made. Thus, the automatic stay applied. No. 09CA0563. Luster v. Brinkman, MD. Judgment Collection C.R.C.P. 69 Interrogatories Personal Service Final Order. In this post-judgment proceeding involving attempts to collect a judgment for costs, defendant Judith M. Brinkman, MD, through her assignee for collection, COPIC Insurance Company, (collectively, Brinkman) appealed the trial court s order denying her request for substituted service of C.R.C.P. 69 interrogatories on plaintiffs Stacy and Walter Luster. The case was remanded for further proceedings. The Lusters sued Brinkman for medical malpractice. A jury found for Brinkman and awarded $79,297.08 in costs to Brinkman as the prevailing party. When the attempts to personally serve the Lusters with C.R.C.P. 69 interrogatories in Georgia failed, Brinkman requested that the trial court authorize substituted service of the interrogatories on counsel for the Lusters pursuant to C.R.C.P. 4(f), which the trial court denied. The Lusters claimed that the trial court s order is interlocutory and therefore cannot be appealed. The Court of Appeals agreed. The trial court did not determine whether its order effectively ended Brinkman s efforts through court processes to obtain information about the assets of the Lusters, nor whether the order prevented further proceedings, such as issuance of a writ of execution directed to seizure of a particular asset or a writ of garnishment to debtors of the Lusters. Accordingly, the case was remanded to the trial court with directions to determine whether its substituted service order effectively ends Brinkman s collection efforts and prevents further collection proceedings to make it a final appealable order. No. 09CA1943. Patterson v. BP America Production Company. Class Certification. Defendant BP America Production Company (BP), formerly known as Amoco Production Company (Amoco), appealed the district court s order certifying a class of approximately 4,000 royalty owners who entered into leases or royalty agreements with BP or its predecessors. The order was affirmed. In the early 1970s, the named plaintiffs or their predecessors in interest (collectively, plaintiffs) entered into lease or overriding royalty agreements under which Amoco had the right to explore for oil and gas within a specified area in either Adams or Weld County in exchange for royalty payments. None of the agreements expressly permitted the deduction from the royalty payments of the costs of making the gas marketable after its extraction. Each plaintiff also signed Oil and Gas Division Orders and Oil and Gas Transfer Orders (collectively, Orders). The Orders provided payment terms for gas sold subject to federal regulation. At the time, gas prices were federally regulated and plaintiffs were paid pursuant to the Orders. Deregulation began in the 1980s and Amoco began using a netback method of calculating royalty payments. This method deducted the costs incurred to make gas marketable before paying royalties; however, the deductions were not disclosed to plaintiffs. In 2003, plaintiffs sued BP, Amoco s successor, for breaching the royalty agreements by making the cost deductions. Plaintiffs moved to certify a class, and BP moved for partial summary judgment on the ground that many claims were barred by the six-year statute of limitations. The district court granted BP s motion. On appeal, a division of the Court of Appeals reversed the partial summary judgment. The Otis, Coan & Peters, LLC Page 48 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Colorado Supreme Court granted certiorari and reversed the division s determination as to the proper accrual statute. Plaintiffs then renewed their request for class certification with the district court, which, in a lengthy opinion, was granted. The Court of Appeals affirmed. Plaintiffs sought certification under C.R.C.P. 23(b)(3). Certification is appropriate under that rule if (1) questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and (2) a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The Court first concluded that the four prerequisites under C.R.C.P. 23(a) were met: numerosity, typicality, predominance, and fair and adequate protection of the interests of the class. BP contested the numerosity and typicality requirements, and the Court rejected their arguments. BP also contended that the C.R.C.P. 23(b)(3) requirement was not met, because individual issues concerning fraudulent concealment predominated over issues common to the class, and each individual would have to present individualized evidence of actual ignorance and reliance regarding the royalty payments. The Court determined the district court did not abuse its discretion in holding that such facts can be proved by common evidence on a classwide basis and that such common evidence predominates over any individual evidentiary issues. The order was affirmed. No. 09CA0218. Etchieson v. Central Purchasing LLC. Product Liability C.R.C.P. 12(b)(2) Personal Jurisdiction Due Process Minimum Contacts. In this product liability action, plaintiff William Etchieson and defendant Central Purchasing, LLC appealed from the trial court s judgment dismissing defendant Precision Mastech Enterprises Co. (Precision), for lack of personal jurisdiction under C.R.C.P. 12(b)(2). The district court s judgment was reversed and the case was remanded. In his complaint, plaintiff sought compensation for injuries he incurred when an electric meter manufactured by Precision exploded. Precision is a Chinese company with no offices, employees, or facilities in the United States. The meter in question was manufactured by Precision in China; sold to Central Purchasing; sold to Harbor Freight Tools, USA; and, finally, sold to plaintiff. The court granted Precision s motion to dismiss for lack of personal jurisdiction, determining that Precision s contacts with Colorado were insufficient to constitute minimum contacts. Plaintiff and Central Purchasing contended that the court s ruling was erroneous. First, there is statutory long-arm jurisdiction for the alleged commission of a tortious act in Colorado, so the question is whether exercising jurisdiction violates due process. Specific personal jurisdiction permits the court to exercise jurisdiction only over claims that "arise out of or relate to" the defendant s contacts with the forum. Plaintiff s claim arises out of or relates to Precision s Colorado contacts, through its sales to Central Purchasing, a California company with its principal place of business in California, because those contacts are alleged to have proximately caused plaintiff s injury by bringing into his possession the electric meter that injured him. By manufacturing the finished electric meters, complete with packaging and the Cen-Tech branding, altering its meters specifically for the U.S. market (including Colorado), and advertising its meters in publications distributed throughout the United States (including Colorado), Precision purposefully Otis, Coan & Peters, LLC Page 49 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 availed itself of the U.S. market. It follows that Precision also purposefully availed itself of the Colorado market. Additionally, Precision sold a different model of electric meter directly to a Colorado customer, Rozek, a corporation with its principal place of business in Colorado. Although plaintiff s injuries did not arise out of (in the sense of being caused by) Precision s sales of those meters to Rozek, it was reasonably foreseeable that Precision could be sued in Colorado for selling defective electric meters to or through Rozek. Therefore, Precision had the requisite minimum contacts, and subjecting Precision to litigation in a Colorado court does not offend traditional notions of fair play and substantial justice. Therefore, the trial court erred in determining that it had no specific jurisdiction over Precision even under the "stream of commerce plus" test. The judgment of dismissal was reversed and the case was remanded for reinstatement of plaintiff s complaint against Precision and for further proceedings as necessary. No. 09CA1125. Bailey v. Airgas-Intermountain, Inc. Summary Judgment Rejected C.R.C.P. 56(f) Request. This case presented an unresolved issue of summary judgment practice in Colorado: When a trial court properly rejects a C.R.C.P. (Rule) 56(f) affidavit, may the court simultaneously enter summary judgment, or must the court first afford the nonmovant an opportunity to address the merits of the motion? The Court of Appeals held that a trial court may "collapse its denial of Rule 56(f) relief into entry of summary judgment," and such action is reviewable for abuse of discretion. In this case, the Court found no abuse and affirmed. Plaintiffs and their spouses appealed summary judgment in favor of plaintiffs former employer, Airgas- Intermountain, Inc., and four supervisors (collectively, Airgas). Airgas leases office space in a building allegedly contaminated by mold. Plaintiffs asserted that they became ill from exposure to mold while working for Airgas. Their spouses alleged loss of consortium. Sixty days after the complaint was filed and following two extensions, Airgas moved under Rule 12(b)(5) for "partial dismissal," asserting that the exclusivity provision of the Colorado Workers Compensation Act (WCA) barred all of plaintiffs claims. Plaintiffs responded that relief based on WCA exclusivity could be granted only under Rule 56, and attached an affidavit of counsel. Airgas did not challenge the assertion that the motion to dismiss must be converted to a motion for summary judgment. Airgas argued that the affidavit did not satisfy Rule 56(f) and that it was not in control of evidence relevant to the contention that any right of plaintiffs to recover workers compensation benefits had been compromised. The motion remained pending for nine months and the case then was assigned to another judge. Two months later, the court issued an order denying the Rule 56(f) request and granting the motion for summary judgment based on WCA exclusivity. Plaintiffs moved for reconsideration, reiterating that their response had sought deferral of the ruling pursuant to Rule 56(f) and attached affidavits of the five plaintiffs, three of whom stated or implied that a workers compensation claim had not been filed because of acts or omissions of Airgas. The trial court denied reconsideration and held the affidavits could not be considered. The Court of Appeals noted that a trial court abuses its discretion in denying a Rule 56(f) request when the movant has demonstrated that the proposed discovery is necessary and could produce facts that would preclude summary judgment. Here, the affidavit was vague and conclusory. In addition, plaintiffs, Otis, Coan & Peters, LLC Page 50 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 not Airgas, would have had sufficient knowledge to file an affidavit if they had not filed a workers compensation claim because of misconduct of Airgas. Thus, there was no abuse of discretion in denying Rule 56(f) relief. Plaintiffs argued the trial court erred in entering summary judgment without affording them an opportunity to address the merits after having denied the Rule 56(f) relief. The Court held that a trial court has discretion to enter summary judgment while simultaneously denying the nonmovant s request for Rule 56(f) relief and appellate review is available for abuse of discretion. In this case, the Court found no such abuse and affirmed the summary judgment. Nos. 09CA0315 & 09CA1477. Quizno s Franchising II, LLC v. Zig Zag Restaurant Group, LLC. Order to Show Cause Appeal Dismissal Notice Sanctions. This case came before the Court of Appeals on its order to show cause why (1) appellant, Quizno s Franchising II LLC (Quiznos), did not file a motion to dismiss within a reasonable time, and (2) this court should not impose sanctions. Sanctions were not imposed, the order to show cause was discharged, and the appeal was dismissed. This case involved consolidated appeals by Quiznos. The matter was fully briefed; the case was at issue as of February 8, 2010; and on March 12, 2010, oral argument was set for May 12, 2010. The parties reached an agreement and signed a Settlement, Release, and Termination Agreement on March 22, 2010. On May 5, 2010, Quiznos filed a motion to dismiss and to vacate the oral argument. Because Quiznos offered no explanation for its long delay in filing its motion to dismiss, the Court issued an order to show cause. Quiznos filed a response apologizing and explaining that although the settlement agreement was signed on March 22, 2010, the settlement resolution was not completed until a number of other actions, including a payment, were complete. Quiznos further explained that counsel for Quiznos contacted the Court and verbally informed it of the settlement on April 7, 2010. Oral notification of the settlement of a pending appeal is insufficient. A party must provide the court with notice of the settlement of a pending appeal immediately and in writing. In the circumstances presented here, however, the Court declined to impose such sanctions. Accordingly, the order to show cause was discharged and the appeal was dismissed. No. 09CA0223. Maloney v. Brassfield. Personal Injuries Trial Time Due Process Video Depositions. Plaintiff Robert Maloney appealed from a judgment entered in favor of defendant Michael Brassfield regarding causation and damages in an automobile accident case. The judgment was affirmed. The trial court set this automobile accident case for a jury trial for a maximum of seven days. It ruled that trial time would be split equally between Maloney and Brassfield; tracked use of trial time with a clock; and refused all of Maloney s requests during trial for additional time, despite his assertions that he was not being afforded an adequate opportunity to present his case. Maloney argued that the court violated his due process rights by not allowing him more time to present his case. The Court of Appeals disagreed. The trial court was familiar with the facts of the case and legal issues, and was aware that both sides were represented by experienced attorneys. In addition, the case appeared to be triable within the time limits imposed when those limits were set and both sides received adequate notice of the time limits imposed by the trial court. Furthermore, the parties were allowed to make strategic decisions within those time limits and the court kept both sides apprised of their remaining time throughout the trial. Otis, Coan & Peters, LLC Page 51 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Maloney also contended that the trial court erred in allowing the video depositions of Brassfield s experts to be played at trial in lieu of having these doctors testify. Because the witnesses were available to testify, the trial court erred in admitting the preservation depositions in lieu of live testimony. However, Maloney failed to explain how the live testimony of the experts would have differed from their video depositions; therefore, any error was harmless. The Court affirmed the trial court s judgment. No. 08CA1867. Mintz v. Accident and Injury Medical Specialists, PC. Interpleader Abuse of Process Breach of Fiduciary. In this bifurcated interpleader action, plaintiff David Mintz appealed the judgment entered for defendants (collectively, providers) on their abuse of process and breach of fiduciary duty counterclaims. The judgment was reversed and the case was remanded. Mintz is an attorney who represented thirty-seven clients in automobile accident cases. The providers treated these clients and were to be paid from the clients settlement proceeds Mintz obtained. Mintz, however, withheld $130,186.79 from the providers, which he kept in his Colorado Lawyer Trust Account Foundation (COLTAF) account. The first trial court concluded that the providers were entitled to the $130,186.79 in Mintz s COLTAF account. The second trial found that Mintz abused the interpleader process and breached his fiduciary duties to the providers. On appeal, Mintz contended that the trial court erred in ruling that he abused the interpleader process. The trial court found that there was serious doubt about the accuracy of the amounts providers billed to the patients, and it was not improper for Mintz to investigate the bills and prosecute the interpleader. These findings are inconsistent with the court s conclusion in the second trial that Mintz improperly manufactured or generated the dispute. Although the trial court found that Mintz had an ulterior purpose for filing the interpleader namely, to avoid[] further liability to Attorney Regulation Counsel his actions in investigating and prosecuting the dispute do not constitute the improper act necessary to satisfy the improper use element of the providers abuse of process counterclaim. Mintz also contended that the trial court erred in entering judgment against him on the providers breach of fiduciary duty claim. Mintz did not undertake a duty to act primarily for the providers benefit with respect to the patients settlement proceeds held in his COLTAF account. Rather, the money in Mintz s COLTAF account was money the insurers had paid to Mintz for the patients benefit and not the providers benefit. Further, Mintz and the providers were engaged in arm s-length business transactions. Accordingly, the record does not support the trial court s finding that Mintz owed a fiduciary duty to the providers. 12. PROBATE/WILLS/TRUSTS No. 09SC377. Foiles v. Whittman. Exempt Property Allowance Probate Code Statutory Construction Plain Meaning Surviving Spouse Vesting of Right Standing of Estate. This is a case interpreting the exempt property allowance statute, CRS 15-11-403. The Supreme Court held that the statutory language plainly establishes that the right to an exempt property allowance automatically vests when the claimant survives the decedent by more than 120 hours. The Court Otis, Coan & Peters, LLC Page 52 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 concluded that, even if a claimant dies before making a claim for an exempt property allowance, the claimant s estate may make the claim on his or her behalf. No. 09CA0222. In re the Estate of McCreath: Ritchey v. McCreath. Trusts and Wills Revocation. Charlotte M. Ritchey (daughter) appealed the trial court s order holding that a quitclaim deed issued by Hazel McCreath (mother) as trustee of the trust deed was ineffective to transfer the trust assets to daughter free of the trust, and that mother s will did not revoke the trust at the time of its execution. The order was affirmed. On July 11, 1992, mother executed a trust agreement as settlor, designating both mother and daughter as trustees. The trust corpus consisted of the family farm, including appurtenant mineral interests. The agreement provided that the trust estate was to be divided equally among mother s three children on termination, and that mother had the right to revoke the trust at any time. On March 13, 2001, mother executed a quitclaim deed as trustee of the trust. The deed conveyed the family farm and unrelated mineral interests to daughter, free and clear of the trust. On May 25, 2005, mother executed a document that is presumed to be her last will and testament. The document was handwritten by an attorney, executed by mother, and witnessed by the attorney and a nurse. The will had four stipulations: (1) to revoke all prior wills and trusts; (2) to give personal property to the children in equal shares; (3) to distribute residuary to daughter (80 percent), Elton McCreath (10 percent), and Milford McCreath (10 percent); and (4) to appoint a non-family member as personal representative (or if none were found, to appoint daughter as personal representative). Mother passed away a year after signing the will. Elton and Milford McCreath (collectively, sons) commenced a declaratory judgment action as to the validity and effect of the documents, alleging claims against daughter for breach of fiduciary duty, conversion, civil theft, an accounting, and constructive trust. Daughter subsequently filed for formal probate of the will and sons entered as interested parties. The trial court issued a modified case management order, providing for a jury trial on the validity of the will and a Bench trial on whether the will revoked the trust. The remaining claims were stayed. Sons filed a motion for determination of two questions of law under C.R.C.P. 56(h): (1) whether the signature of mother as trustee of the trust on the quitclaim deed was effective to transfer trust assets to daughter free and clear of the trust; and (2) whether the trust could be revoked by mother s will at the time it was executed and delivered to daughter. The trial court held that the signature of mother alone was ineffective to transfer the trust assets to daughter free of the trust and that mother s will did not revoke the trust. On appeal, daughter argued that the will was effective at the time of its execution and delivery to revoke the trust. The Court of Appeals disagreed. The trust provided for revocation "by an instrument in writing signed by [mother] and delivered to Trustees." There was no provision for revocation by will. Therefore, as a matter of law, mother s will was ineffective in revoking the trust. Daughter argued that mother could convey the trust estate free of the trust to a co-trustee by quitclaim deed. The Court disagreed. Mother did not own the trust estate and therefore could not transfer title to the property in it. The trust agreement authorized the trustees, acting jointly, to convey the property. Thus, a valid transfer required both trustees to convey title. Otis, Coan & Peters, LLC Page 53 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 The Court also rejected daughter s argument that the quitclaim deed of the trust s real property constitutes a constructive revocation of the trust. The trust provided an explicit protocol for revocation, and this protocol was not followed here. The judgment was affirmed. No. 09CA1645. Saunders v. Muratori. Mediation Agreement Signature Trust Beneficiaries. Petitioner appealed the district court s order approving a settlement stipulation between three of the beneficiaries of the McNulty Ranch Trust. The judgment was affirmed. Petitioner argued that the district court erred in approving the mediation agreement because he did not agree to it or sign it. He participated in the mediation by telephone, and his attorney signed the agreement on his behalf. When trust beneficiaries bring suit for the benefit of a trust, a court may properly approve the settlement of such an action, even over the objection of one of the petitioner beneficiaries, if the settlement is just and reasonable. Because the evidence in the records supports the district court s finding that the settlement was just and reasonable, the court did not abuse its discretion in approving the settlement stipulation over petitioner s objections. The order was affirmed. 13. PROPERTY No. 09SC189. Bly v. Story. Section 38-1-102, C.R.S. Petition for Condemnation Easement Valuation Real Estate Valuation Evidence Appellate Review of Evidentiary Rulings. Condemnor Tamara Story owns a forty-five acre, landlocked parcel in Jefferson County that has no public or private means of access. She originated this action after unsuccessfully attempting to negotiate purchase of an access easement over land owned by condemnees Richard and Patsy Bly. Condemnor filed a petition for condemnation pursuant to 38-1-102, C.R.S., and condemnees moved to dismiss the petition for failure to adequately describe the easement sought and its purpose. The trial court denied the motion and granted condemnor s petition on its merits. In the jury trial to determine just compensation for the partial taking, the trial court excluded condemnees expert testimony regarding the cost of constructing a new road where the existing driveway sits. The trial court determined the evidence was not relevant to the market value of the nonexclusive access easement over the existing driveway. The court of appeals affirmed the trial court s decision on both issues. The Supreme Court held that 38-1-102, C.R.S., does not require a petitioner to provide a metes and bounds legal description of the property or to specify the particular uses for which the property is to be condemned. It also held that valuation evidence based on the cost of constructing a new road across the existing driveway was admissible, but that the trial court s exclusion of that evidence was not an abuse of discretion. Accordingly, the judgment was affirmed. No. 09SC456. CDOT v. Gypsum Ranch Condemnation Whether the court of appeals erred in holding that CDOT does not have the authority to take title to the subsurface mineral rights in condemnation proceedings and settlements. Otis, Coan & Peters, LLC Page 54 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 No. 08SC784. Joondeph v. Hicks. Derivative Equitable Subrogation Effect of Actual Knowledge Equities Among the Parties Before the Court Conveyance of Subrogation Rights Exception to Race-Notice Recording System Lien Priority. This case involves a dispute over the priorities of liens encumbering property located in Englewood. Respondent Donald Hicks attempted to foreclose a lien on the property and to obtain a declaratory judgment regarding his lien s priority. Petitioners, purchasers Shirley and Brian Joondeph and their mortgage company, CitiMortgage, Inc., sought to be equitably subrogated to the senior priority position that the property s prior owners and mortgage company had themselves obtained through equitable subrogation. The court of appeals held that petitioners would not be permitted to obtain the senior priority of the prior owners and mortgage company through equitable subrogation. Applying Colorado Supreme Court case law, the court of appeals noted that because petitioners had actual knowledge of Hicks s preexisting lien, they were not entitled to equitable subrogation. Equitable subrogation by its nature addresses the equities of the parties before the court. The court of appeals also found no precedent for recognizing "derivative" equitable subrogation, which would have allowed the conveyance of the prior owners subrogation rights to the petitioners via warranty deed. The Supreme Court affirmed the judgment of the court of appeals. The Court reiterated that actual knowledge of preexisting liens generally precludes the application of equitable subrogation. Here, petitioners had actual knowledge of Hicks s prior lien and were not operating under a mistaken assumption that their lien would have senior priority status. Thus, they were not entitled to equitable subrogation. The Court declined to recognize a doctrine of derivative equitable subrogation: in Colorado, equitable subrogation addresses only the equities of the parties before the court, and it remains a narrow exception to the normal order of priority established by Colorado s race-notice recording system. No. 08SC1026. Palizzi v. City of Brighton. Condemnation Valuation Proceedings Eminent Domain Partial Takings Present Market Value Highest and Best Use Agricultural Land Future Dedication Requirements Development Exactions Annexation and Rezoning Admissibility of Valuation Evidence. The City of Brighton (City) condemned for road improvements approximately 0.8 acres of agricultural land owned by Debora Palizzi, Gloria Bennett, and Palizzi & Son, Inc. The condemned strip of property would have to be dedicated to the City should the entire property be annexed and the use changed for commercial and residential development. A jury awarded $204,387.15 as just compensation for the taken property, based on its highest and best use being for commercial and residential development. The Court of Appeals held that, where condemned undeveloped land would have to be dedicated as a condition of development, the land must be valued based only on uses to which the property could be put in the absence of rezoning or development approval. The Court of Appeals further ruled that the trial court abused its discretion in admitting evidence that relied on the entire property s potential for development. The Supreme Court reversed the Court of Appeals judgment. In accordance with Colorado s expansive evidentiary rules for property valuation in condemnation cases, the Court held that all evidence relevant to the determination of the present market value of the condemned property is admissible, including Otis, Coan & Peters, LLC Page 55 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 evidence of the most advantageous potential future use of the entire property, even if the condemned property would need to be dedicated as part of annexation and rezoning of the entire property in the future. Accordingly, the trial court did not err in admitting evidence regarding the entire agricultural property s highest and best use based on the property s potential for development. No. 08SC783. Wells Fargo Bank, N.A. v. Kopfman. Judgment Liens Uniform Enforcement of Foreign Judgments Act C.R.C.P. 54. The Supreme Court held that to revive a 13-52-102(1), C.R.S., judgment lien premised on a foreign judgment domesticated in Colorado pursuant to the Uniform Enforcement of Foreign Judgments Act, judgment creditors must revive the underlying foreign judgment in the jurisdiction that originally issued the judgment. The judgment creditor then must revive the domesticated foreign judgment in Colorado by complying with the requirements of C.R.C.P. 54(h) and filing a transcript of the revived judgment record in the county where the original transcript of judgment record was recorded. The judgment of the Court of Appeals was affirmed. No. 08CA2633. Sinclair Marketing Inc. v. City of Commerce City. Municipal Annexation Real Property Public Rights-of-Way Railroad Rights-of-Way Attorney Fees. The Burch plaintiffs and the Sinclair plaintiffs appealed the trial court s judgment in favor of defendants, the City of Commerce City and the City Council (collectively, the City), upholding two annexations of plaintiffs property. The City cross-appealed the court s refusal to award attorney fees. The judgment was affirmed in part and vacated in part, and the case was remanded. This unilateral land annexation case primarily presents the question of whether a statutory exception to municipal annexation power concerning public rights-of-way includes railroad rights-of-way. Addressing a question of first impression under 31-12-106(1.1), C.R.S., the Court of Appeals concluded that railroad rights-of-way do not constitute public rights-of-way. Accordingly, the unilateral annexations of the Southern and Northern Enclaves were not void based on the public rights-of-way exception in 31-12-106(1.1), C.R.S., and to that extent the district court s judgment was affirmed. The Burch plaintiffs also contended that the Southern Enclave annexation should be declared void because the annexation map for AN-57-85, which formed its eastern boundary, does not show compliance with the one-sixth contiguity requirement. Because this issue cannot be determined from a review of the record, a remand is necessary for the district court to direct the City to make further factual findings as to whether AN-57-85 meets the one-sixth contiguity requirement. On cross-appeal, the City contended that the trial court abused its discretion by declining to award attorney fees and costs. The Court of Appeals disagreed. Whether to award attorney fees pursuant to 31-12-116(2)(a)(IV), C.R.S., is within the discretion of the trial court, and plaintiffs claims were not without merit. Therefore, the trial court s ruling was not manifestly arbitrary, unreasonable, or unfair. No. 08CA2009. Amos v. Aspen Alps 123, LLC. Public Trustee Foreclosure Notice C.R.C.P. 120 Strict Compliance Redemption Bid Rigging Attorney Fees Lis Pendens. In this action seeking to set aside a public trustee foreclosure, plaintiffs Betty Amos and the Estate of Thomas Righetti (Estate), the former owners of a condominium unit sold during a foreclosure sale, appealed from a summary judgment in favor of defendant Equitable Bank (Bank), the foreclosing creditor; a judgment following a Bench trial in favor of intervenor Aspen Alps 123, LLC (AA123), the Otis, Coan & Peters, LLC Page 56 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 purchaser; and attorney fees awards to both the Bank and AA123. The judgment was reversed in part and affirmed in part, and the case was remanded. Amos contended that the Bank failed to strictly comply with the notice requirements of C.R.C.P. 120, and that voiding the foreclosure sale is the proper remedy. The Court of Appeals disagreed. Although C.R.C.P. 120 requires strict compliance, and the Bank did not strictly comply with the rule, undisputed actual notice to the Estate precludes a remand to set aside a sale when, as a result, the right to contest the default was not prejudiced. Amos contended that Colorado s statutory redemption procedures require substantial compliance rather than strict compliance, and that she substantially complied. The Court disagreed. The statutory right to redeem is a substantive right to be exercised in strict compliance with statutory terms, which Amos did not do. The statute expressly affords the purchaser an absolute right to veto redemption where the redeeming party fails to give timely notice. Accordingly, the trial court did not err when it concluded that Amos failed to timely redeem. Amos contended that the three bidders at the foreclosure sale engaged in bid rigging contrary to the Colorado Antitrust Act of 1992. The Court agreed. When the three bidders ceased bidding and agreed to collectively purchase the condominium unit, they intended their agreement to eliminate further competition among them. This constitutes bid rigging. The case was remanded to the trial court to determine whether setting aside the foreclosure is the appropriate equitable remedy. The Court agreed with plaintiff that the trial court erred in awarding attorney fees to AA123 based on the notices of lis pendens she filed. The trial court based its decision to award attorney fees on its finding that the notices were groundless. However, according to the trial court s record, the notices were not groundless. Therefore, the trial court erred in awarding attorney fees under the spurious documents statute, slander of title statute, and 38-35-109(3), C.R.S.. The Court rejected Amos s contention that the trial court erred in awarding the Bank $101,973.25 in attorney fees under a Pledge and Security Agreement executed between Amos and Abkey No. 1, a limited partnership, and the Bank. The Court concluded that the agreement supported the fees award and affirmed the award of attorney fees to the Bank. No. 09CA0201. McNamara v. Mossman. Partition Fair Market Value Allocation. Defendant Shannon Mossman appealed the trial court s order in this partition action. Plaintiffs Helen McNamara and Sheila Caldwell cross-appealed. The order was affirmed in part and reversed in part, and the case was remanded. McNamara, Caldwell, and Mossman owned land together as tenants-in-common. Because the parties were unable to agree on how to partition the property, the court appointed a commissioner to evaluate the property s suitability for partition-in-kind. Due to the physical nature of the property, the commissioner made recommendations to partition the land based on fair market value of the lands involved. Relying on the commissioner s report and testimony, the trial court found the property could be partitioned in kind based on value without causing manifest prejudice to the parties. McNamara and Caldwell argued that the court should have found that partition-in-kind was impracticable because the nature of the land made it impossible for the apportioned parcels to enjoy all of the features of the larger property, and thus the court should have ordered all three parcels to be sold. Partition based on value may be ordered where there is an appropriate rationale for doing so. However, Otis, Coan & Peters, LLC Page 57 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 the decision to partition-in-kind based on value must be made on a case-by-case basis. Here, the commissioner s recommendation provided each party with a parcel whose value corresponded to her individual interest in the entire property. No sufficiently unusual features were shown to make division of the land impracticable, nor did the partition reduce its value. Therefore, the Court of Appeals upheld the trial court s ruling that partition based on value would not result in manifest prejudice. Mossman argued that the trial court abused its discretion when, contrary to the commissioner s recommendation, it awarded Caldwell an additional forty-acre parcel without also awarding Mossman another forty-acre parcel to compensate her for the value of the parcel lost to Caldwell. The Court agreed. There is no evidence in the record to support the court s divergence from the commissioner s recommended allocation of the property. The court s award unnecessarily resulted in an inequitable allocation of the property, and thus was an abuse of discretion. The trial court s ultimate allocation of property to the parties was reversed, and the case was remanded for further proceedings on that allocation. In all other respects, the judgment was affirmed. No. 09CA0763. Barfield v. Hall Realty, Inc. Real Estate Transaction Broker Fiduciary Relationship Negligent Misrepresentation Fraudulent Representation Fraudulent Concealment. In this case concerning representations by a transaction real estate broker in connection with the sale of resort property, Gilbert Barfield appealed the trial court s entry of summary judgment in favor of Hall Realty, Inc. The judgment was affirmed. Hall Realty acted as the transaction broker in connection with the sale of a resort owned by Daniel W. Weddel, Sr. (seller) and purchased by Barfield to operate a twelve-site RV park. Thereafter, the Colorado Department of Public Health and Environment (CDPHE) informed Barfield that the resort was not properly permitted to be operated as an RV park. Barfield brought an action against Hall Realty for negligent misrepresentation, fraudulent representation, and fraudulent concealment. The trial court dismissed the complaint after finding that Hall Realty did not have actual knowledge of the permit issues and did not have any further duty to investigate as the transaction broker. On appeal, Barfield contended that the trial court erred in concluding that 12-61-807, C.R.S., warranted dismissal of his claims. The Court of Appeals disagreed. A transaction broker is not in a fiduciary relationship with any party to a real estate transaction. Although a transaction broker has certain duties, the transaction broker is under no duty to conduct an independent inspection of the property for the benefit of the buyer and has no duty to independently verify the accuracy or completeness of statements made by the seller or independent inspectors. Here, it is undisputed that when Hall Realty listed the resort for sale, it was operating as an RV park consisting of twelve RV sites, six cabins, a home, an office, and a grocery store. It is also undisputed that Hall Realty did not know that the resort was not properly permitted to operate as a twelve-site RV park under state and county regulations. Therefore, Hall Realty had no reason to believe that the resort was anything but an ongoing, operational RV park, and the trial court did not err in dismissing the fraudulent concealment claim. Further, Hall Realty had no duty as a matter of law to conduct an investigation of the resort to verify that it could in fact operate as a twelve-site RV park under state and county regulations. Consequently, Hall Realty s failure to conduct such an investigation cannot be the basis for a negligent misrepresentation or fraudulent representation claim. Otis, Coan & Peters, LLC Page 58 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 No. 09CA1087. City of Colorado Springs v. Andersen Mahon Enterprises, LLP. Inverse Condemnation De Facto Taking Possession. Andersen Mahon Enterprises, LLP (Andersen) appealed the trial court s order dismissing its inverse condemnation counterclaim against the City of Colorado Springs (City). The order was affirmed. After the City condemned Andersen s property to widen a road, Andersen filed a counterclaim for inverse condemnation, alleging that the City s delay in acquiring the property constituted a de facto taking and resulted in lost rental income and other expenses. The City filed a motion to dismiss, arguing that no taking had occurred until it actually took possession of the property. The motion was granted by the trial court. On appeal, Andersen contended that the trial court erred in concluding that, as a matter of law, a de facto taking had not occurred and it was not entitled to lost rental income for the period between the date Andersen lost its tenant in the property and the date the City took possession of the property. Specifically, Andersen argued that a de facto taking occurred after the City had obtained funding and governmental approval for the project and had sent the notice of intent to acquire the property, because a cloud of condemnation hung over the property, thereby depriving Andersen of its ability to lease the property. The Court of Appeals disagreed. The mere plotting or planning in anticipation of a public improvement does not constitute a taking or damaging of the property. Here, the City made no physical ouster of Andersen from the property and did not interfere with its power of disposition or use of the property prior to actually taking possession of the property. Therefore, Andersen s complaint failed to state a claim for inverse condemnation, and the trial court properly granted the City s motion to dismiss. No. 09CA0769. The Upper Platte and Beaver Canal Company v. Riverview Commons General Improvement District. Interference With Ditch Easement Governmental Immunity. Plaintiff-appellee Upper Platte and Beaver Canal Company (Company) holds easements to carry water through its ditch and to access the ditch for maintenance. In 2003, defendant Seagull-Fort Morgan, L.L.C. (not a party to the appeal) began a residential development on property through which the ditch runs. The final plat of the development conveyed all streets and alleys to defendants-appellants (collectively, City), subject to existing but unspecified easements. Seagull graded and paved Canal Street, which parallels the ditch on its north bank. The complaint alleged these changes lowered and narrowed the ditch s north bank, thereby impairing Company s ability to access the ditch to maintain it and increasing the risk of overflow. Company sued City and Seagull for trespass, specifically seeking declaratory, injunctive, and restorative relief against City. City s motion to dismiss under the Colorado Governmental Immunity Act (CGIA) was denied and this interlocutory appeal followed. The Court of Appeals noted the CGIA bars claims that "lie... or could lie in tort." This is not an exact standard and equitable and declaratory claims may be, but are not necessarily, barred by the CGIA. Therefore, the Court employed a case-by-case approach based on "a close examination of the pleadings and undisputed evidence." City did not dispute the existence of Company s easements or its right to "inspect, operate, and maintain a ditch easement." Where a servient owner interferes with the dominant owner s easement, injunctive relief is available. Restorative relief also is available if the easement has been unilaterally altered. Otis, Coan & Peters, LLC Page 59 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 City argued that Company s claims lie in tort and therefore were barred by the CGIA. The Court disagreed, finding that the claims do not depend on City s liability for tortuous conduct, do not seek compensation for injury caused by breach of a duty, and do not derive from breach of a tort duty. The declaratory and injunctive claims do not seek to establish liability for damages but rather for the noncompensatory remedy of declaring the parties rights and preventing future interference with Company s easements. Further, the restorative relief requested would be against Seagull, not City. The Court agreed with the trial court that the CGIA does not bar Company s claims for declaratory, injunctive, and restorative relief concerning City property on which the easements allegedly have been altered and obstructed. The Court affirmed the denial of City s motion to dismiss under the CGIA. No. 08CA2192. G&A Land, LLC v. City of Brighton. Summary Judgment Promissory Estoppel Inverse Condemnation 42 U.S.C. 1983. In early 2004, the City of Brighton (Brighton) decided to build a new wastewater treatment plant in unincorporated Weld County. For the next several years, Brighton engaged in actions and communications with G&A Land, LLC; Jacob J. Dawson; and Betty L. Dawson (landowners) regarding its intent to construct the treatment plant on their properties. By August 2007, negotiations were unsuccessful and landowners filed this lawsuit. They alleged, among other things, that Brighton s actions and inactions during the pre-condemnation period deprived them of their right to alienate their properties. The trial court concluded as a matter of law that Brighton s communications did not constitute an enforceable promise under the doctrine of promissory estoppel, that landowners inverse condemnation and 42 U.S.C. 1983 claims were not ripe because Brighton had not made a final decision regarding the properties, and that there was no taking of the properties. On appeal, landowners argued that Brighton s announced plans to acquire their properties and its offer to do so constituted a promise on which they reasonably relied, and therefore it was error to grant summary judgment on the promissory estoppel claim. The Court of Appeals disagreed, finding that the communications and actions of Brighton were not sufficient to create the type of obligation that would support a promissory estoppel claim. Landowners also argued it was error to dismiss the inverse condemnation and 1983 claims pursuant to C.R.C.P. 12(b)(5). The Court agreed as to only the inverse condemnation claim. An inverse condemnation claim allows property owners a remedy when a government entity effects a taking of property for a public purpose without initiating and following formal condemnation proceedings. The taking need not be a physical taking. The Court held that landowners contention that Brighton had taken actions that interfered with their dominion over the properties was sufficient to state a claim on which relief under an inverse condemnation theory may proceed. Landowners also argued it was error for the trial court to hold that their takings claim was not ripe until Brighton instituted or abandoned formal condemnation proceedings. The Court agreed, finding that landowners alleged they already had been harmed and continued to be harmed regardless of how Brighton proceeded in the future. This was sufficient to state a claim that cannot be dismissed under Rule 12(b)(5). Finally, landowners argued it was error to dismiss their due process claim under 42 U.S.C. 1983. The Court disagreed on different grounds than the trial court. The Court held that because the inverse Otis, Coan & Peters, LLC Page 60 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 condemnation claim has not yet been resolved unsuccessfully to landowners, their 1983 claim was not ripe. No. 09CA2520. City of Steamboat Springs v. Johnson. Eminent Domain Greenbelt Summary Judgment Easement Appurtenant Value. Charles Johnson and Johnson Excavation, Inc. (collectively, Johnson) appealed the district court s partial summary judgment on valuation issues regarding Johnson s Lot 4 and Johnson s interests in a greenbelt. The judgment was affirmed in part and reversed in part, and the case was remanded for further proceedings. The City of Steamboat Springs (City) decided to construct a new highway on what once was greenbelt area. To do so, it obtained a judicial decree that it owned the greenbelts, condemned or acquired property owners appurtenant rights to restrict use of that area to anything but greenbelts, and acquired adjoining properties. The district court granted the City s motion for partial summary judgment as to the value of most of Johnson s interests, including Lot 4 and the greenbelt interests. Johnson argued that summary judgment is unavailable in takings cases because property owners have a constitutional right to require that a jury determine the amount of compensation. However, the summary judgment rule, C.R.C.P. 56, plainly applies to eminent domain proceedings. Here, there was no genuine dispute as to the value of Lot 4. Therefore, summary judgment was proper on this issue. Johnson s greenbelt interests were an easement appurtenant to his Lot 4 property. The value of that lost interest depends not on the effect on the greenbelts themselves, but rather on the effect on Lot 4. Because the district court did not measure before and after values of Lot 4 but relied on appraisals of the greenbelts themselves, the case was remanded to determine the proper amount by which loss of the greenbelts diminished the value of Lot 4. No. 09CA1081. Whiting Oil and Gas Corporation v. Atlantic Richfield Company. Contract Option Real Property Material Breach Reformation Common Law Rule Against Perpetuities Retrospective Unclean Hands. In this action concerning the exercise of a contractual option to purchase real property, defendant Atlantic Richfield Company (ARCO) appealed the trial court s judgment in favor of plaintiff Whiting Oil and Gas Corporation, formerly Equity Oil Company (Equity). The judgment was affirmed. In 1968, ARCO and Equity entered into an agreement (1968 agreement) whereby ARCO purchased a portion of Equity s interest in the Boies Block and the Figure Four Claims, as well as an option to purchase 80 percent of Equity s interest in the Sunset claims. ARCO and Equity twice amended the 1968 agreement (1977 amendment and 1983 amendment). In April 2006, Equity sent a letter to ARCO exercising the option in the 1983 amendment. In October 2006, ARCO sent Equity a letter exercising its right to cancel the option. The trial court reformed the option and entered judgment in favor of Equity. This appeal followed. ARCO contended that the trial court erroneously concluded that Equity s breaches were not materially related to the option, and therefore did not excuse ARCO from its obligation to honor it. However, the record supports the trial court s finding that Equity s breaches, which concerned only oil shale research and its obligations under the R&D project, were not materially related to the option. Accordingly, Equity s breaches did not excuse ARCO from its obligation to honor the option. Otis, Coan & Peters, LLC Page 61 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 ARCO contended that the trial court erred when it reformed the option pursuant to the reformation provision, because that statute applies only to probate instruments. The reformation provision of the Colorado Statutory Rule Against Perpetuities Act, 15-11-1106(2), C.R.S., does not exclude from its application nondonative transfers or any other kind of transfer, such as the option in this case. Therefore, the trial court did not err when it reformed the option pursuant to the Act. ARCO also contended that the trial court s application of the reformation provision to the option was unconstitutionally retrospective because it took away ARCO s vested rights in the Boies Block. However, the statute reveals a clear legislative intent to retroactively apply the reformation provision to interests and powers of appointment created before its effective date. Additionally, the reformation provision is remedial in nature, and its application did not take away or impair ARCO s vested interests. Accordingly, the trial court s application of the reformation provision was not unconstitutionally retrospective. Finally, ARCO contended that it prevailed, as a matter of law, on its unclean hands defense, because the trial court found that Equity breached its duty of good faith and fair dealing, which was the basis for ARCO s unclean hands defense. Whether the unclean hands doctrine applies is a separate inquiry from whether a party to a contract has breached the implied duty of good faith and fair dealing. Here, the trial court determined that the evidence did not establish that Equity came to court with unclean hands, and the trial court did not abuse its discretion in making this finding. The judgment was affirmed. No. 09CA1021. Loveland Essential Group, LLC v. Grommon Farms, Inc. Real Property Purchase Agreements Warranty Deed Lease Encumbrance Damages Diminution in Value Indemnity Clause Attorney Fees Fraud Breach of Contract. In this real property contract case, Loveland Essential Group, LLC (buyer) appealed and Grommon Farms, Inc., Gary Grommon, and Connie Grommon (collectively, seller) cross-appealed various aspects of the district court s judgment. The judgment was affirmed in part and reversed in part. The district court found that seller had breached a real estate purchase agreement (RPA), an asset purchase agreement (APA), and a warranty deed by conveying the property subject to an encumbrance (collectively, tenant), but awarded buyer no damages. The court ruled in seller s favor on buyer s fraud claim, which also pertained to the existence of the lease. On appeal, Buyer contended that the district court erred by concluding that it was not entitled to damages from seller for breach of the RPA, APA, and warranty deed. Buyer was entitled to claim diminution in the property s fair market value caused by the existence of the lease. The district court found that damages were limited to the fair rental value of the property to the expiration of the lease term, which tenant pays pursuant to the lease. Because the district court did not make any findings concerning buyer s request for such loss in value, the case was remanded to the district court for such findings. Buyer also contended that the indemnity clauses in the RPA, APA, and warranty deed entitle it to reasonable costs and attorney fees it incurred in suing tenant to determine the validity of the lease; therefore, the district court erred in denying its request for such damages. The Court of Appeals determined that buyer s unsuccessful suit against tenant was not necessary either to maintain or defend buyer s title; therefore, the court did not err in denying its request for attorney fees. Buyer further contended that the district court erred in finding that seller did not commit fraud. The court s finding that buyer had full knowledge of the written lease and its terms before the closing is Otis, Coan & Peters, LLC Page 62 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 amply supported by the record; therefore, the district court did not clearly err in finding that buyer could not have justifiably relied on seller s alleged misrepresentation. As a result, buyer s fraud claim failed. Seller contended that the district court erred in concluding that it breached the RPA, APA, and warranty deed by conveying the real property subject to the lease. Because the lease constituted an encumbrance on the property, which was not listed as an exception in the warranty, seller breached the RPA and the warranty deed. On the other hand, the lease, though an encumbrance on the real property, was not an encumbrance on the acquired assets, which were the subject of the APA. Therefore, the APA was not breached. It also follows that seller s challenge to the district court s ruling on buyer s indemnification claim necessarily failed. The judgment was affirmed in part and reversed in part. No. 09CA1314. Bolinger v. Neal. Easement Quiet Title Planned Unit Development License Fraud Breach of Contract. In this easement case, plaintiffs Preston and Blythe Bolinger, Dave Mathiesen, Brenda Shelton, Edwin and Donna Coulter, Glenn Wollam, Bonnie Schoenstein, and Mill Creek Subdivision Homeowners Association (HOA) appealed from the trial court s judgment entered after a Bench trial. Defendants Dennis Neal and his company, Plains View Development, LLC, (collectively, Plains View) crossappealed. The remaining defendants, Walt and Carol DeWolf and Colorado Open Lands (COL), a nonprofit corporation, have not cross-appealed. The judgment was affirmed in part, reversed in part, and vacated in part. This case arises from quiet title, fraud, and breach of contract claims involving a path easement within the Mill Creek Subdivision, a planned unit development (PUD) in Weld County. Specifically, Neal began to develop a parcel of land near Berthoud, Colorado, consisting of Lot A and Lot B. Lot B was to be subdivided as a PUD comprising nine large residential lots and approximately 100 acres of open space, which became Lot 10 of the subdivision. Plaintiffs alleged that Neal promised them open and unfettered access to Lot 10, which they were later denied. Plaintiffs contended that because the amended PUD granted a path easement, the trial court erred in rejecting their quiet title claim. The amended PUD sufficiently identified Lot 10 as the servient estate and clearly described the path around the perimeter of and within Lot 10. Therefore, the amended PUD created an express easement. The DeWolfs argued that even if the amended PUD could be read to create a path easement, the conservation deed precluded Neal from doing so. The conservation deed permitted Neal to grant access to Lot 10 to the surrounding property owners, and this deed was not inconsistent with the path easement created by the amended PUD. The individual plaintiffs contended they are entitled to a path easement by estoppel under Restatement (Third) of Property: Servitudes, 2.10. The trial court acted within its discretion in denying such relief as to Wollam and Schoenstein, whose lot was conveyed before the subdivision had been approved and platted. Therefore, Wollam and Schoenstein only have a license to use Lot 10. Plaintiffs contended that the trial court erred in not defining the scope of the licenses as applied to Wollam and Schoenstein. Plaintiffs brought a C.R.C.P. 105 action, seeking to have the court quiet title with respect to the path easement. They did not request a declaratory judgment. Therefore, the trial was not instructed to make further findings concerning this license. Neal and Plains View challenged the fraud judgment entered against them. Because the conservation deed gave actual or constructive notice that Neal s representation was false, the statute of limitations ran Otis, Coan & Peters, LLC Page 63 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 against the Coulters, the Bolingers, Wollam, and Schoenstein before they commenced this action. Because the statute of limitations bars the fraud claims of these plaintiffs, and because Shelton and Mathiesen received what they were promised, the fraud judgment in their favor and the nominal damages awards were reversed. Neal further contended that the trial court erred when it entered judgment against him individually on the breach of contract claims of the Coulters, the Bolingers, Shelton, and Mathiesen. The Court of Appeals corrected the confusion in the trial court s orders and held that Neal was not liable for any breach of contract damages, except as to Wollam and Schoenstein on the Lot 10 claim. 14. SECURITIES No. 09CA1659. Griffin v. Capital Securities of America, Inc. Unrated Capitalized Mortgage Obligations 24-75-601.1, C.R.S., Federal Preemption Remedies (Disgorgement). Defendants Capital Securities of America, Inc., Jerry Manning, and Adam Alves (collectively, Capital Securities) appealed the district court s judgment finding that Capital Securities had violated 24-75- 601.1, C.R.S., and ordering disgorgement of commission Capital Securities had earned on sales of collateralized mortgage obligations (CMOs) to Jefferson County. The judgment was affirmed. In August 2006, the legislature amended 24-75-601.1, C.R.S., to provide that public entities could not purchase unrated securities issued by the Federal Home Loan Mortgage Corporation (FHLMC) or the Federal National Mortgage Association (FNMA). Following the amendment, Capital Securities sold four FHLMC unrated CMOs to Jefferson County. The sales were not solicited by Capital Securities but were made at the request of the outgoing county treasurer. Capital Securities received commissions totaling $213,576.82. The new county treasurer (Griffin) concluded that the purchase of these CMOs was unlawful under 24-75-601.1, C.R.S., and demanded that Capital Securities repurchase them. It declined to do so. Jefferson County thereafter sold the CMOs, suffering no damages. On appeal, Capital Securities argued that 24-75-601.1, C.R.S., is preempted by two federal statutes: 15 U.S.C. 77r of the National Securities Markets Improvement Act (NSMIA) and 12 U.S.C. 1451 et seq., the Federal Home Loan Mortgage Corporation Act (FHLMCA). The Court of Appeals disagreed. The Court found there was no express preemption by the NSMIA, because 24-75-601.1, C.R.S., does not impose any broad registration, qualification requirements, or other merit-based conditions on the offering or sale of covered securities within Colorado, nor does it achieve a similar objective by prohibiting the sale of such securities within the state for failure to fulfill a merit-based condition. The Court also found there was no preemption under the FHLMCA, because that act expressly allows a state to limit or prohibit the purchase of FHLMC securities by public entities. The parties both disputed whether 24-75-601.1(1.5), C.R.S., creates an implied damages remedy. The Court concluded it does not. The Court found there were express remedies provided in the statutory scheme, because subsection (1.5) provides a repurchase obligation applicable to "any financial instrument that fails to comply with the provisions of this section." Capital Securities argued it was error for the trial court to award disgorgement of its commissions to Jefferson County. The Court disagreed. The Court noted that restitution requires disgorgement of a defendant s gain, usually to prevent unjust enrichment. Although the Court agreed with Capital Securities that 24-75-601.1(1.5), C.R.S., does not provide a private damages remedy, the Court found Otis, Coan & Peters, LLC Page 64 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 that the trial court awarded disgorgement as a common law remedy. The Court also rejected Capital Securities argument that the statutory remedy was an exclusive remedy that precluded the trial court from awarding an equitable remedy. 15. STATUTE OF FRAUDS/LIMITATIONS No. 09CA1869. United Fire Group v. Powers Electric, Inc. Summary Judgment Statute of Limitations Construction Defect Action Reform Act. Plaintiff United Fire Group (insurer) appealed the trial court s summary judgment in favor of defendants Powers Electric, Inc. and Gary J. Powers (collectively, electrician). The judgment was affirmed. On March 6, 2006, a fire damaged property owned by Metamorphosis Salon (salon). Neither the salon nor its insurer knew what caused the fire. Three weeks later, a fire investigator gave the insurer a report stating that the cause was faulty wiring in an electrical exit sign. The electrician had installed the sign. Insurer made a series of payments to the salon to compensate for its losses. On March 11, 2008, insurer filed a subrogation claim against the electrician, alleging negligent installation of the exit sign that caused the fire. The electrician moved for summary judgment, alleging that the case was barred by the statute of limitations and that the time began to run on the date of the fire. Insurer replied that the statute began to run either on the date insurer received the investigator s report or the date the salon cashed the insurance payments. The trial court granted the electrician s motion for summary judgment. Insurer appealed. This is a construction defect case brought under the Construction Defect Action Reform Act. The parties agreed such cases are governed by a two-year statute of limitations. They also agreed that the two-year period begins to run when a claimant "discovers or in the exercise of reasonable diligence should have discovered the physical manifestations of a defect in the improvement which ultimately causes the injury." They also agreed that the improvement in this case was the electrician s installation of the exit sign. Insurer argued it could not determine the cause of the fire until the investigator provided his report and, therefore, could not have discovered in the exercise of reasonable diligence the physical manifestation of the defect in the exit sign installation. The electrician countered that the fire was the physical manifestation of the defect; thus, insurer could have discovered in the exercise of reasonable diligence that there had been a fire on the day it occurred. The Court of Appeals agreed with the electrician and affirmed the summary judgment. The Court also rejected the insurer s argument that, as a subrogee, it did not suffer any injury until the salon cashed the insurance payments. The Court held that case law is clear that the insurer stands in the shoes of its insured and has no greater rights than the insured. No. 09CA0162. Fisher v. Community Banks of Colorado, Inc. Credit Agreement Act Loan Ambiguous Statute of Frauds Extrinsic Evidence Standing. Plaintiff (borrower) appealed a judgment entered following a jury trial in a lender liability case brought against defendant Community Banks of Colorado, Inc. (bank). The jury, following legal and evidentiary rulings adverse to borrower, rejected borrower s claims and found in favor of the bank on a counterclaim. The judgment was reversed and the case was remanded for a new trial. Otis, Coan & Peters, LLC Page 65 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 The bank loaned borrower approximately $3.4 million to build a luxury home in Cherry Hills Village. As security, borrower executed deeds of trust to that land and to his Telluride vacation home. The loan was modified and extended three times, through documents titled "Change in Terms Agreement." The bank ultimately initiated foreclosure proceedings and thereafter sold the loan to Western Real Estate Equities, LLC (Western). Borrower and Western reached a settlement whereby borrower paid approximately $4.5 million under the note and relinquished any claims against Western but not against the bank. Borrower contended that the trial court was incorrect in ruling that (1) the loan agreements unambiguously set a 36 percent default interest rate; and (2) the Credit Agreement Act precluded evidence that the parties never intended that rate. Although the Colorado Credit Agreement Act contains an expansive statute of frauds provision, the Act does not limit extrinsic evidence to resolve facially ambiguous credit agreements. The agreement here was ambiguous because the original loan agreement and the three change agreements contained inconsistent provisions regarding the interest due on borrower s default. Therefore, borrower was entitled to a new trial in which the jury considers otherwise admissible extrinsic evidence relevant to resolving the agreements ambiguity. Because the trial court erroneously prohibited this evidence, the case was reversed and remanded for a new trial on borrower s claims against the bank. On remand, the jury must determine which interest rate the parties intended to control on default. Borrower also contended that the bank lacked standing to maintain a fraudulent inducement counterclaim because it assigned the loan and all related claims to Western. The counterclaim judgment against borrower was reversed because the bank unequivocally assigned that claim to a third party. No. 09CA0900. Portercare Adventist Health System v. Lego. Breach of Contract Medical Services Statute of Limitations. Defendant Robert Lego appealed the jury s finding that he is liable to plaintiff Portercare Adventist Health System (hospital) on its claim for breach of a contract implied in fact to pay for medical services and care that the hospital provided to his wife, Bernadette Lego. He also appealed the district court s order requiring him to pay the hospital s attorney fees. The judgment was reversed. Bernadette Lego was admitted to the hospital on August 18, 2001. In late September, her insurer indicated that it believed she no longer needed the level of care provided by the hospital and would not pay for her to stay at the hospital after October 1. She unsuccessfully challenged the insurer s determination through administrative channels and in court. She remained at the hospital until November 9, 2001. The hospital thereafter billed a total of $453,084 for her stay. Her insurer paid $301,570.99. In November 2001, the hospital demanded that she pay the remaining bill of $144,044.36. Bernadette and Robert Lego refused the bill. In April 2005, the hospital filed a complaint against Bernadette Lego s estate (she had died in the interim) and against Robert Lego, stating a single claim for money owed. Robert Lego argued that the trial court erred in allowing the hospital s claim to proceed to trial, because it was barred by the three-year statute of limitations. The Court of Appeals agreed. The hospital conceded that its sole claim for breach of a contract implied in fact accrued in November 2001. All contract actions must be commenced within three years after the cause of action accrues, except pursuant to 13-80-103.5, C.R.S., which applies a six-year statute of limitations to a contract claim seeking to recover a liquidated debt or an unliquidated, determinable amount of money. A sum is liquidated or determinable within the meaning of 13-80-103.5(1)(a), C.R.S., only where a document evidencing the agreement sets forth an amount owed or a formula for calculating an amount owed. Otis, Coan & Peters, LLC Page 66 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 In this case, no provision of any alleged agreement sets forth an amount owed or a formula (or other readily calculable means) for determining the amount owed; rather, the hospital alleged a contract arising from the parties conduct. Because the hospital s recovery was limited to quantum meruit, its claim was subject to the three-year statute of limitations. Because it is undisputed that the hospital commenced this case more than three years after its claim accrued, Robert Lego is entitled to judgment on the claim as a matter of law. Accordingly, the judgment was reversed, the order awarding attorney fees to the hospital was vacated, and the case was remanded for entry of judgment in Robert Lego s favor. 16. TAX/TAX DEEDS No. 08SC401. Lake Canal Reservoir Co. v. Beethe. County s Jurisdiction and Authority to Issue Treasurer s Deeds County s Compliance With Statutory Requirements Void and Voidable Treasurer s Deeds Flaws in Assessment, Notice, and Description Statute of Limitations for Raising Challenges to Treasurer s Deed. After the owner of record failed to pay assessed taxes, Weld County issued a treasurer s deed to respondents for a parcel of property containing a reservoir. Six years later, petitioners brought suit to challenge the validity of the treasurer s deed. Pursuant to 39-12-101, C.R.S., a challenge to a treasurer s deed must be brought within five years, but the statute of limitations does not apply to a void deed. The trial court held that deficiencies in assessment, notice, and description made the treasurer s deed void and thus not subject to the five-year statute of limitations. The Court of Appeals reversed, reasoning that where extraneous evidence is necessary to determine a deed s flaws, that deed is not void on its face and can only be voidable. Thus, it held that the statute of limitations barred petitioners claims. The Supreme Court affirmed the Court of Appeals judgment, albeit under a different rationale. The Court held that the line between a void and a voidable tax deed does not depend on the nature of the evidence used to determine the deed s defect, but rather on the nature of the defect itself. When a defect goes to the jurisdiction or authority of the taxing entity, that defect will render a deed void. This may happen, for example, if taxes are erroneously doubly assessed or if taxes are assessed on public property. However, if a defect does not challenge the jurisdiction or authority of the taxing entity, then a deed is merely voidable, making the related claims subject to the statute of limitations. In this case, the defects errors in assessment, notice, and description challenged the manner in which the deed was issued but did not challenge Weld County s jurisdiction or authority to tax the property or to issue the deed. The Court therefore held that the treasurer s deed was voidable, rather than void. Because petitioners claims were brought after the expiration of the relevant statute of limitations, their claim to set aside the treasurer s deed is time-barred. The case was remanded for further proceedings consistent with this opinion. No. 08SC972. MDC Holdings, Inc. v. Town of Parker. Local Government Denial of Taxpayer Use Tax Refund Request Municipal Codes De Novo Review Statutory Construction Home Rule Cities Matters of Mixed State and Local Concern Superseding State Statute. This case involves the district court s denial of injunctive relief sought by the Town of Castle Rock and the Town of Parker (collectively, Towns) to prevent the Executive Director of the Colorado Department of Revenue from hearing a taxpayer s appeal from the Towns denial of a use tax refund request. Ruling that the Executive Director lacked jurisdiction to hear the appeals for failure of taxpayer Otis, Coan & Peters, LLC Page 67 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 MDC Holdings, Inc. (MDC) to exhaust its local remedies, the court of appeals ordered the district court to grant the injunction. The Supreme Court reversed the court of appeals decision. MDC, a homebuilder in both Towns, requested and obtained an informal hearing by the Towns to review the denial of MDC s use tax refund requests. Following the informal hearing, the Towns insisted that MDC request a formal hearing before their Finance Directors as a pre-condition to exercising MDC s right of appeal to the Executive Director under 29-2-106.1, C.R.S. The Court held that the statute provides for only an informal hearing at the local level and supersedes provisions of the Towns codes that require the taxpayer to submit to a formal hearing. The Court agreed with the district court that the Executive Director has jurisdiction to hear the use tax refund appeals because MDC properly exhausted its local remedies in accordance with the statute. No. 09CA0571. Shupe v. Boulder County. Residential Versus Agricultural Use for Tax Purposes Boulder County Land Use Code. The Board of Adjustment of Boulder County (BOA) appealed the district court s judgment reversing the BOA s determination that the principal use of property of plaintiffs Kenneth and Darla Shupe was residential rather than agricultural. The judgment was affirmed. The Shupes own and reside on approximately 4.8 acres of land in Boulder County in a zoned agricultural district. Their home, a barn, a driveway, three-quarters of an acre of hay production, small gardens, a pond, and a grazing area are located on the property. The Shupes used the barn for several years to host weddings and special events; they eventually replaced the barn and continued to use the new structure for the same purposes. In 2006, the Boulder County Land Use Department (Department) issued a cease and desist letter, asserting that such use was not authorized without a proper permit. The Shupes filed an application for special use review with the Department, which refused to process the application without a determination as to the principal use of the property. The Shupes requested that the director of the Department classify the principal use as agricultural. The director found the principal use was residential, with agricultural as an accessory use. The Shupes appealed to the BOA, which upheld the decision of the director. The Shupes filed a C.R.C.P. 106(a)(4) complaint against the BOA. The district court reversed the BOA s decision, finding sufficient evidentiary support for its factual findings but a failure to apply Article 4-502(E)(5)(c) of the Boulder County Land Use Code (Code). On appeal, the Court of Appeals considered whether the Code allows the BOA to uphold the director s determination, given that the property is located in a zoned agricultural district. The Court held that the Code mandates that, as long as the record before the BOA supports the determination that open agriculture was a featured use on the property and the residential use of the property consisted of a single-family dwelling, the residential use on the Shupes' property could not be deemed the principal use. Therefore, it was an abuse of discretion by the BOA to adopt the director s determination. The judgment was affirmed. No. 09CA0426. Noble Energy, Incorporated v. Colorado Department of Revenue. Sales Tax Oil and Gas Fracture Service Tangible Personal Property Manufacture. The Colorado Department of Revenue (Department) and Roxanne Huber, in her capacity as Executive Director of the Department, appealed the judgment in favor of Noble Energy, Inc. (taxpayer) for a refund of sales taxes. The judgment of the district court was affirmed in part and reversed in part, and the case was remanded for further proceedings. Otis, Coan & Peters, LLC Page 68 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Taxpayer hired oil and gas well service companies to fracture wells it operated in Colorado during the taxable period. All the fracturing companies charged sales tax to taxpayer on the fracturing materials. Taxpayer filed for a refund of the sales tax it paid on the charges for the materials, arguing that there was no purchase of tangible personal property, as well as a refund of the sales tax it paid on the purchase of the separators. Taxpayer s claims were denied. Taxpayer appealed to the district court for a de novo trial. The court entered a judgment in favor of taxpayer for a refund of $2,820,338.72, plus interest. The Department filed this appeal. The Department argued that the district court erred in holding that: (1) the fracturing materials are inseparable from the service provided by fracturing companies and therefore not subject to sales tax; (2) the sand used for fracturing jobs does not meet the statutory definition of tangible personal property; and (3) the separators are exempt from tax liability. If the real object sought by the buyer is the service per se, the transaction is not subject to tax even though some tangible personal property is transferred. Here, the tangible personal property once consumed either is disposed of or becomes an integral and inseparable part of the underground formation. The fractures, not the materials, are the finished product sought by taxpayer. Therefore, because the true object of hiring the fracturing companies was to receive a service albeit a service that involved the use of fracturing fluids and sands the fluids and sands are not tangible personal property and are not taxable. The separators, on the other hand, are not exempt from tax liability. Because the separators merely sort the well stream into its three component parts (water, oil, and gas) and do not manufacture anything new, they are subject to sales tax. No. 09CA1083. Waste Management of Colorado, Inc. v. City of Commerce City. Summary Judgment Sales and Use Tax Tangible Personal Property. The City of Commerce City (City) appealed the grant of summary judgment by the district court, which found that certain services are not subject to sales or use tax under the City s Sale and Use Tax Code (Code). The Court of Appeals affirmed the district court s ruling. Waste Management of Colorado, Inc., (Waste Management) provides waste removal, disposal, and recycling services to City customers. It offers "roll-off service" for customers with substantial amounts of waste or recyclable materials. When a customer contracts for this service, Waste Management transports to the customer a large steel container with rollers on the bottom. Waste Management owns the containers, paid sales or use tax to City when it purchased them, and uses them solely for this rolloff service. When the container is full, Waste Management picks it up and, if needed, replaces it with another container. A fee is charged each time the roll-off container is removed. There is no charge for the containers and they are not sold, leased, rented, or licensed to customers. Waste Management does not collect sales tax from its customers in the City with respect to its fees and charges for providing waste removal and disposal services, including the roll-off service. Waste Management contracted with two transportation companies, Dutch Boy Express, Inc. (Dutch Boy) and Ryder Integrated Logistics, Inc. (Ryder) to haul its trailers from its transfer station in the City to landfills or recycling facilities, and to return the empty trailers to the transfer station. The haulers were paid on a per-load or per-hour basis, and the haulers used their own tractors and drivers or contracted with third parties. Neither Dutch Boy nor Ryder charged sales tax on the amounts that Waste Management paid for the hauling services. Otis, Coan & Peters, LLC Page 69 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 City performed a tax audit of Waste Management from July 1, 2003, to June 30, 2006, and sent notification of a tax deficiency and assessment. City sought sales and use taxes on Waste Management s revenues from roll-off services and the amounts charged by Dutch Boy and Ryder. City argued these were taxable under a provision of its Code that imposed sales or use tax on the purchase price paid or charged, or for any consideration for the furnishing of tangible personal property in certain transactions. The district court granted Waste Management s summary judgment motion, finding that the roll-off service and the contracted hauling services are not subject to sales or use tax under City s Code. City appealed. The Court noted that 20-4-7 of the Code was amended during the tax audit period; it therefore considered the language of the pre- and post-amendment versions. City argued that both transactions involved the furnishing of "tangible personal property" and were taxable under both versions as a rental or use of such property. The Court disagreed, though its analysis was different for the pre- and postamendment versions. The Court held the pre-amendment version was not clear and unambiguous and applied the rule set forth in Leanin Tree as argued for by Waste Management [City of Boulder v. Leanin Tree, Inc., 72 P.3d 361, 367 (Colo. 2003)]. The latter is a multi-factor or totality of the circumstances test for "inseparably mixed transactions." Using this test, the Court concluded for numerous reasons that the roll-off services were not transactions for the furnishing of tangible personal property. Under the post-amendment version, the ambiguous phrase, "together with the services of an operator" was changed to "together with or without the services of an operator." The definition of "service contract" also was changed and this lead to a new ambiguity. The Court applied the same analysis as above and again concluded that the transactions, when considered in their totality, were exempt services. The Court applied the same analysis and reasoning when looking at the waste hauling transactions. Again, the Court found that under the totality of the circumstances test, the haulings were not transactions for the furnishing of tangible personal property and therefore were exempt from the sales and use tax. No. 09CA1548. Romantix, Inc. v. City of Commerce City. Summary Judgment Sales and Use Tax. The City of Commerce City (City) appealed the district court s summary judgment in favor of plaintiff Romantix, Inc. (Romantix). The judgment was reversed. Romantix operates an adult video arcade in the City. Customers are given the opportunity to view various films. They can purchase prepaid cards that enable them to activate a "film preview" or an "arcade" feature in a private room on the premises using equipment furnished by Romantix. In the film preview option, the customer chooses a film to watch inside a private room. The customer can fast-forward, adjust sound, and start and stop the viewing. The charge is based on the size of the room. In the arcade option, the customer may view any of approximately fifty film channels. Charges are $5 for the first twenty minutes and 25 cents for each additional minute. The customer can switch channels, fast-forward, adjust sound, and start and stop the viewing. Romantix collected City sales tax from its customers based on the price the customer paid for the prepaid cards for tax years 2005, 2006, and 2007. It later sought a refund. Following a hearing, the City s Otis, Coan & Peters, LLC Page 70 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 hearing officer determined no refund was owed. Romantix appealed to the district court under 29-2- 106.1(8)(a), C.R.S. The court granted summary judgment to Romantix. On appeal, the City argued that the transactions are taxable for several reasons. The Court of Appeals agreed, holding that the transactions constitute a grant of a license to use tangible personal property and therefore are taxable under 20-4-1, C.R.S., of the City s Sales and Use Tax Code (Code). The filmviewing equipment falls under the Code s definition of "tangible personal property," and the viewing falls under the Code s definition of "use." Further, customers effectively acquire a license to exercise a degree of control over the equipment to customize their viewing experience. Accordingly, the judgment was reversed and the case was remanded to the district court with directions to grant the City s crossmotion for summary judgment. Nos. 09CA1322 & 09CA2181. Leggett & Platt, Inc. v. Ostrom, Interim Finance Director and City Treasurer of the City of Thornton. Sales Tax Colorado Uniform Commercial Code Store Fixtures Thornton City Code Common Carriers Commerce Clause. Plaintiffs Leggett & Platt, Inc. and The Gap, Inc. (collectively, taxpayers) appealed the district court judgment upholding the order of defendants (collectively, Thornton) denying their requests for a refund of sales taxes. The judgment was affirmed. Leggett & Platt manufactured store fixtures for The Gap for use in The Gap s retail stores. At its loading dock in Thornton, Leggett & Platt loaded the store fixtures into vehicles either owned or hired and paid for by The Gap, which then delivered the fixtures to The Gap s retail stores located outside Thornton, and in some cases, outside Colorado. Leggett & Platt billed The Gap for Thornton sales tax imposed on the purchase and sale of store fixtures, which The Gap paid to Leggett & Platt. Leggett & Platt then remitted the sales tax to Thornton. Taxpayers argued that because the master vendor agreement specified that delivery was F.O.B. place of destination, The Gap did not acquire the store fixtures until they were delivered to its retail stores located outside Thornton. Consequently, no sales tax should have been levied because the taxable events occurred outside Thornton. The Court of Appeals disagreed. The Gap acquired or obtained possession of the goods in Thornton when the goods were loaded onto common carriers hired and paid for by The Gap at Leggett & Platt s loading dock in Thornton. Therefore, Leggett & Platt s sales of store fixtures to The Gap were taxable as retail sales "within the City" under the City Code. Taxpayers alternatively argued that even if the sales transactions occurred in Thornton, the exemptions for interstate and intrastate sales under 26-390(10) and (11)(b) of the City Code apply to the transactions; therefore, Thornton sales tax should not have been imposed. However, the common, contract, or commercial carrier must be employed by the seller for the interstate and intrastate exemptions to apply. Because the goods were loaded onto common carriers hired and paid for by The Gap at Leggett & Platt s loading dock in Thornton, the exemptions do not apply. The Court also rejected taxpayers assertion that Thornton s sales tax assessment violates the Commerce Clause of the U.S. Constitution. The sales transactions took place in Thornton, so the transactions did not constitute interstate commerce and the Commerce Clause was not implicated. Otis, Coan & Peters, LLC Page 71 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 17. TORT CLAIMS a. Damages No. 09SC20. Volunteers of America Colorado Branch v. Gardenswartz. Collateral Source Rule Contract Exception of 13-21-111.6, C.R.S. Health-Care Provider Discounts Third-Party Insurance. On certiorari review, the Supreme Court considered whether a successful tort plaintiff may recover damages for the full amount of medical expenses incurred, or may recover only the discounted amount paid by the plaintiff s third-party insurance company. The Court held that under the collateral source rule, as codified by the contract exception of 13-21-111.6, C.R.S., plaintiff may recover in full from defendant, because plaintiff was indemnified for the entire amount of medical services billed to him as a result of the health insurance contract he had purchased. The benefits from this policy, including the health-care provider discounts, are from a collateral source, and the tort feasor may not use these independently procured benefits to reduce its liability for the reasonable value of the medical services rendered to plaintiff. Accordingly, the Court of Appeals judgment was affirmed. No. 09CA0604. Jorgensen v. Colorado Rural Properties, LLC. Civil Theft Unjust Enrichment Economic Loss Rule Attorney Fees Contract. Plaintiffs Daniel and Linda Jorgensen appealed the district court s judgment rejecting their claim for civil theft against defendants Colorado Rural Properties, LLC (CRP), Dennis Neal (CRP s office manager), and Scarlett VanRoss. They also appealed the district court s order denying their motion for attorney fees and costs. The judgment was vacated in part and affirmed in part, and the case was remanded. Following negotiations between the Jorgensens and Neal, CRP hired the Jorgensens as associate realtors. When the Jorgensens began working for CRP, they signed the written office policy manual, as required by the Colorado Real Estate Commission. The manual did not contain commission-splitting terms, and those terms were not set forth in writing elsewhere. The Jorgensens subsequently quit and sued defendants for unpaid commissions. On appeal, the Jorgensens contended that the district court erred by applying the economic loss rule to conclude that the unjust enrichment claim barred their civil theft claim after the court found there was no contract. The Court of Appeals agreed. The economic loss rule provides that a party suffering only economic loss from the breach of an express or implied contractual duty may not assert a tort claim for such breach absent an independent duty of care under tort law. A claim for unjust enrichment may not be asserted if there is a valid contract covering the subject matter of the alleged obligation to pay. Because the existence of an obligation to pay by application of an unjust enrichment theory does not bar a tort claim, it follows that the economic loss rule does not apply to unjust enrichment claims. Accordingly, the district court erred in determining that the economic loss rule barred the Jorgensens civil theft claim as a matter of law, and the judgment was vacated. The Jorgensens also contended that the district court erred in denying their motion for attorney fees and costs because the evidence conclusively established the existence of a contract entitling them to such an award. The Court disagreed. The district court found that there was no meeting of the minds (and hence no agreement) as to how to split commissions from sales involving the Jorgensens family, friends, and pre-existing customers, which was supported by evidence in the record. It follows that the fee-shifting provision in the office policy manual does not apply by its express terms because the Otis, Coan & Peters, LLC Page 72 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Jorgensens did not substantially prevail on their contract claim. The district court s order denying the Jorgensens motion for attorney fees and costs was affirmed. No. 09CA0586. Vickery v. Vickery. Exemplary Damages Computation 13-21-102(3) and (1)(a), C.R.S.. After a jury trial on her claims of defamation and malicious prosecution, plaintiff Monica Vickery appealed two trial court orders relating to the award of exemplary damages in her favor. The Court of Appeals affirmed. Plaintiff s husband, Donald Vickery, died of cancer on December 20, 2005. Defendant was his sister. Prior to Donald s death, tensions mounted between plaintiff and defendant over Donald s medical care, Donald s property, and defendant s right to visit Donald. Following his death, defendant asserted in probate court that a number of items of personal property belonged to her. These assertions were rejected. Defendant then challenged a codicil to his will, asserting Donald s signature was forged. These assertions also were rejected. Defendant then sent letters to eleven federal and state recipients claiming that plaintiff, a sergeant with the Denver Police Department, had committed "murder, fraud, theft, and misuse of police authority." Additional similar letters subsequently were sent. Plaintiff sued, alleging defendant committed malicious prosecution in the probate case and that the letters defamed her. Prior to trial, plaintiff discovered defendant had mailed additional anonymous envelopes containing flash drives to the Colorado Governor s Office, the Denver Mayor s Office, the Denver Police Department s Internal Affairs Division, and the Fraternal Order of Police. The drives alleged plaintiff was under U.S. Treasury Department investigation, had used her position as a Denver police officer for personal gain, and had committed crimes of moral turpitude and public deception. The complaint was amended to allege these drives also were defamatory and to request exemplary damages under 13-21-102, C.R.S., as well as prejudgment interest. Following a ten-day trial, the case was submitted to the jury. The jury did not find malicious prosecution in the claims of ownership of personal property but concluded defendant had committed malicious prosecution in challenging the codicil. It awarded $59,000 in compensatory damages and $10,000 in exemplary damages. The jury also found defendant guilty of all nine claims of defamation submitted to it. It awarded various amounts of compensatory and exemplary damages on each claim, ranging from $1 to $25,000 as compensatory damages and $1,000 to $25,000 as exemplary damages. On January 27, 2009, plaintiff filed a motion to increase the punitive damages award on certain of the defamation claims under 13-21-102(3)(a), C.R.S. The motion was denied. On February 2, 2009, plaintiff filed a motion requesting entry of judgment, including prejudgment interest. On March 5, 2009, the trial court entered a final judgment awarding compensatory damages on each defamation claim in the amounts determined by the jury, plus prejudgment interest, and a judgment awarding exemplary damages on each claim capped by the amount of compensatory damages assessed by the jury and without the addition of prejudgment interest. On appeal, plaintiff argued it was an abuse of discretion to deny her motion to increase the exemplary damage awards on certain of the defamation claims, and that it was an abuse of discretion to reduce exemplary damages on certain claims without first adding prejudgment interest to the amount of compensatory damages assessed by the jury. The Court rejected both contentions. Section 13-21-102(3), C.R.S., allows the trial court, in its discretion, to increase a jury s exemplary damages under certain circumstances. Specifically, it permits (but does not mandate) the exemplary Otis, Coan & Peters, LLC Page 73 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 damages to be trebled if the defendant, in a willful and wanton manner, continued the action that was the subject of the claim during the pendency of the case. The Court found no abuse of discretion in the trial court s decision not to increase the exemplary damages under this provision. Section 13-21- 102(1)(a), C.R.S., limits awards of exemplary damages to the level of actual damages awarded. The Court held that this refers to the jury s compensatory damage verdict alone, not to the verdict as augmented by the prejudgment interest mandated by 13-21-101(1), C.R.S.. Accordingly, the judgment was affirmed. No. 09CA0602. Bonidy v. Vail Valley Center for Aesthetic Dentistry, P.C. Wrongful Termination Calculation of Back Pay Exemplary Damages. Plaintiff Debbie Bonidy appealed the aspects of the trial court s judgment calculating her back-pay damages and denying her claim for exemplary damages. Defendants Dr. James J. Harding and Vail Valley Center for Aesthetic Dentistry, P.C. (collectively, Dr. Harding) cross-appealed the trial court s denial of a directed verdict and its conclusion that Bonidy was wrongfully terminated in violation of public policy. The Court of Appeals affirmed in part and reversed in part. This is the second appeal in a dispute involving the termination of Debbie Bonidy from Dr. Harding s dental practice. In Bonidy I, a division of the Court held that working conditions violating Colorado Wage Order No. 22 may constitute a violation of public policy, and remanded for reinstatement of Bonidy s claim for wrongful termination in violation of public policy and a new trial. Bonidy worked for Dr. Harding as a dental assistant from October 1998 until she was terminated in August 2004. A year after she was hired, Dr. Harding implemented an office policy preventing employees from taking meal or rest breaks unless a patient cancelled an appointment. On July 28, 2004, the policy was amended to prevent employees from leaving the office except to use the restroom, even if a patient cancelled an appointment. Bonidy s husband, advised by an attorney that the work schedule violated Colorado wage laws, e-mailed Dr. Harding advising him of the same. Dr. Harding then fired Bonidy. She was earning $28 an hour when terminated. Dr. Harding asked Bonidy to work three additional days and she agreed. He then discovered $240 missing from the office. Dr. Harding assured Bonidy he did not suspect her of theft. On her last day of employment, Dr. Harding told Bonidy he would pay her for a week of accrued vacation the following week. He subsequently changed his mind. In October 2008, Bonidy s counsel sent Dr. Harding a demand letter accusing him of violating Colorado Wage Order No. 22. The next day, Dr. Harding contacted the police and accused Bonidy of stealing $240 from his office. The first trial ended in a directed verdict for Dr. Harding and, in Bonidy I, the case was remanded for a new trial. In the second trial, the court held Bonidy had been wrongfully terminated in violation of public policy, and awarded $21,040 in damages, consisting of lost wages in the amount of $17,920, accrued from the date of her termination in July 2004 until she opened her new business in November 2004. She also was awarded one week of vacation pay in the amount of $1,120 and reimbursement of a health insurance premium in the amount of $2,000. On cross-appeal, Dr. Harding contended that Bonidy did not establish the necessary elements for her claim of wrongful discharge. He argued that because Bonidy did not refuse to work or object to the work schedule, her claim should have failed. The Court disagreed. The record established that Bonidy Otis, Coan & Peters, LLC Page 74 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 objected to the work schedules and that any formal complaint by her would have been futile. In fact, she was fired before she had a chance to refuse to follow the new work schedule. On appeal, Bonidy argued it was error for the trial court to terminate her back-pay damages on the date she started her new business rather than on the date of the first trial. The Court agreed. Back pay is a "make whole" remedy intended to restore the employee to the financial situation that would have existed but for the employer s wrongful conduct. The proper formula for calculating the amount is a matter of first impression in Colorado. The Court adopted the general formula for calculating back pay as the amount the employee reasonably could have expected to earn absent the wrongful termination, reduced by either (1) the employee s actual earnings in an effort to mitigate damages; or (2) the amount the employee failed to earn by not properly mitigating his or her damages. Here, the Court held Bonidy s back-pay period should not have terminated on the date she became selfemployed because it was a reasonable effort to mitigate her damages when she could not find other employment. The case was remanded for a calculation of back pay measured by the amount of Bonidy s lost wages from the date of her termination to the date of her first trial, less the $3,000 she earned from her good-faith effort to start a business. Bonidy also argued that the trial court erred in concluding she failed to meet her burden of proof for exemplary damages after the court found Dr. Harding engaged in retaliatory and vindictive conduct. The Court agreed. The case was remanded to the trial court for reconsideration of the apparent inconsistency with that finding and the decision not to award exemplary damages. No. 09CA0689. Crossgrove v. Wal-Mart Stores, Inc. Personal Injuries Collateral Source Rule. In this personal injury case, plaintiff appealed the judgment for damages entered on a jury verdict against defendant Wal-Mart Stores, Inc. (Wal-Mart). The judgment was vacated in part and the case was remanded. Plaintiff was struck on the head by a manually operated overhead garage door while delivering cookies to a Wal-Mart store. Based on a negligence theory, he sued Wal-Mart for injuries, claiming in pertinent part more than $240,000 in billed medical expenses. The trial court allowed Wal-Mart to present evidence to the jury that plaintiff s medical providers accepted $40,000 in full satisfaction of his medical bills. Plaintiff also testified to the full amount ($242,293.86) billed by his providers, as well as his loss of income ($101,520). The jury returned a verdict for plaintiff, awarding him a total of $50,000 for economic losses and an additional $27,375 in noneconomic damages. The jury also determined plaintiff was 20 percent at fault. The court thereafter reduced the award by the 20 percent, plus the $40,000 paid by third parties. On appeal, Wal-Mart contended that the collateral source rule is not implicated by presentation of the discounted amount paid in satisfaction of plaintiff s medical bills, as long as the source of payment is unidentified. Colorado s common law collateral source rule is not limited to protecting the cash amounts paid to providers for services rendered. Evidence of the amount paid by third-party payors and, conversely, the amount discounted (or written off) from the billed amount due under a contract between the third-party payor and the provider, is inadmissible under the common law collateral source rule even to show the reasonable value of services rendered, because these payments and discounts constitute collateral sources. Further, the collateral source statute does not abrogate the common law rule prohibiting evidence of collateral sources at trial as it applies only after the verdict is received from the fact finder. Therefore, the trial court erroneously admitted collateral source evidence. The judgment Otis, Coan & Peters, LLC Page 75 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 was vacated as to the amount of damages, and the case was remanded for a new trial on the issue of damages, after which the trial court shall adjust the verdict in accordance with the collateral source statute. b. Negligence No. 09SC451. Rocky Mountain Festivals, Inc. v. Parsons Corp. Wrong-of-Another Doctrine Summary Judgment. Rocky Mountain Festivals, Inc. (the festival) brought suit against Parsons Corporation and Jim Miller (collectively, Parsons) under several legal theories of contract and tort. The festival argued that Parsons had prepared a fundamentally flawed report that caused the festival to incur litigation costs and attorney fees in a prior case. The festival relied on the wrong-of-another doctrine for the proposition that these attorney fees and litigation costs established the element of damages essential to its negligence claim. Parsons moved for summary judgment. The trial court granted the motion on the ground that the festival had failed, as a matter of law, to prove damages. The trial court reasoned that Parsons was partially liable in the prior case and therefore barred from relying on the wrong-of-another doctrine. The court of appeals affirmed, agreeing that the festival had failed, as a matter of law, to prove the element of damages essential to its negligence claim. The Supreme Court reversed. Clarifying the prior case of Brochner v. Western Insurance Co., 724 P.2d 1293 (Colo. 1986), the Court held that a plaintiff s partial liability in a prior case does not necessarily bar it from relying on the wrong-of-another doctrine to establish the element of damages. If the plaintiff can conceptually distinguish the claims for which it seeks litigation costs from the remainder of the claims in the underlying dispute, it still can rely on the wrong-of-another doctrine to establish damages in a negligence action. On remand, the trial court must determine whether the claims for which the festival seeks litigation costs were premised on different facts and pursued under different legal theories than those comprising the remainder of the underlying dispute. No. 09CA0224. O Connell v. Biomet, Inc. Summary Judgment Negligence and Strict Liability to Warn Learned Intermediary Doctrine Captain of the Ship Doctrine. In this action against a medical device manufacturer and its sales representative, plaintiffs Anne and Kerry O Connell appealed the summary judgment in favor of defendants Biomet, EBI, and John Kyger on their claims of negligence and strict liability failure to warn. The judgment was affirmed. Kerry O Connell fractured his elbow; his physician, Dr. Christopher Brian, recommended surgery. To provide range of motion during the healing process, Dr. Brian used an external elbow fixator called the EBI OptiROM, manufactured by EBI, a wholly owned subsidiary of Biomet. The fixator may be sold only by or with the order or prescription of a physician. Dr. Brian applied the fixator to O Connell s humerus using bone screws, during which the drill bit or the bone screw pierced his radial nerve, wound it up, and tore a section of it out of his arm, resulting in permanent injury. Afterward, Dr. Brian wrote a letter to Biomet and EBI regarding the injury and recommended revisions to the surgical technique manual to prevent future occurrences of that type of injury. Plaintiffs asserted and settled a claim against Dr. Brian and all of his "agents." They later filed this action, asserting negligence, strict liability failure to warn, design defects, breach of implied warranty, and loss of consortium. Defendants moved to dismiss the negligence claim against EBI s sales representative Otis, Coan & Peters, LLC Page 76 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 (Kyger), asserting that he was one of Dr. Brian s agents under the captain of the ship doctrine, and therefore was covered by the release. They also moved for partial summary judgment on the failure to warn claim, arguing that the warnings and instructions included in the package insert and surgical technique manual were adequate as a matter of law. The trial court granted both motions and subsequently granted summary judgment on the remaining claims. On appeal, plaintiffs argued that the trial court erred in applying the learned intermediary doctrine in holding defendants had a duty to warn only Dr. Brian. The Court of Appeals disagreed. In general, a failure to warn adequately can render an otherwise non-defective product defective for purposes of strict liability recovery. Where prescription drugs are concerned, this duty has been limited to an obligation to advise the prescribing physician of any potential dangers that may result from the drug s use. This principle is the learned intermediary doctrine. In a matter of first impression, the Court held that the learned intermediary doctrine should apply to failure to warn claims in the context of a medical device installed operatively when it is available only to physicians and obtained by prescription, and where the doctor is in a position to reduce the risks of harm in accordance with the instructions or warnings. Thus, in this case, defendants duty was to warn and provide adequate instructions to Dr. Brian. Plaintiffs also contended it was error to apply the captain of the ship doctrine in determining as a matter of law that Kyger was an agent of Dr. Brian. Plaintiffs argued that the doctrine applies only to hospital employees working under the supervision of the surgeon. Defendants argued the doctrine applies to everyone in the operating room working under the surgeon s supervision, regardless of their employer. The Court agreed with defendants, concluded that the doctrine not only includes hospital personnel such as nurses and orderlies, but also includes nonmedical persons present in the operating room on the request and authorization of the physician, where the physician has the right to control and supervise the activities of the nonmedical persons. The judgment was affirmed. No. 09CA1290. J.C. v. Dungarvin Colorado, LLC. Negligence Service Provider Developmental Disabilities Sex Offender Immunity. In this negligence action, plaintiffs J.C. and C.C., individually and on behalf of M.C., appealed the district court s summary judgment in favor of defendants Dungarvin Colorado, LLC (Dungarvin, LLC); Dungarvin Colorado, Inc. (Dungarvin, Inc.); Carmel Community Living Corporation (Carmel); The Resource Exchange (TRE); and Daniel Barriera. The judgment was affirmed. Defendants provided residential and day services to D.C., who had developmental disabilities and was a juvenile sexual offender. Plaintiffs alleged that after D.C. turned 21, he sexually assaulted M.C. Plaintiffs filed suit, claiming that TRE, Dungarvin, Inc., Carmel, and Barriera negligently failed to properly supervise D.C. and negligently failed to warn plaintiffs about his history of committing sexual offenses. The trial court concluded that defendants were immune from liability as service providers. On appeal, plaintiffs contended that (1) the district court erroneously concluded, as a matter of law, that Dungarvin, LLC and Carmel were service providers pursuant to 13-21-117.5(2)(f), C.R.S.; and alternatively, (2) notwithstanding defendants immunity from liability to third parties under 13-21- 117.5(4) and (6), C.R.S., defendants owed a duty of care to M.C. and a duty to warn M.C. Providers of services to persons with developmental disabilities are not liable to third parties for the torts of the developmentally disabled persons they serve, unless a developmentally disabled person communicates to the provider a serious and credible threat of imminent physical violence and serious bodily injury against a specific person or persons. Furthermore, the provision of services to a person with developmental Otis, Coan & Peters, LLC Page 77 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 disabilities does not impose on a provider a duty of care with respect to third persons, unless expressly imposed by federal or state law. Here, Dungarvin, LLC, and Carmel met their initial burden to show that there was no genuine issue of material fact as to whether they were authorized by the Department of Human Services to provide services to persons with developmental disabilities, and plaintiffs failed to rebut that position. In addition, defendants were not providing services to D.C. based on his status as a sex offender when the sexual assault allegedly occurred, and plaintiffs did not allege that D.C. communicated to defendants a serious and credible threat of imminent physical violence and serious bodily injury against M.C. Thus, as providers, defendants were immune from liability for D.C. s violent, assaultive, disorderly, or harassing behavior; had no duty to warn M.C.; and had no duty of care with respect to M.C. that arose from providing services to D.C. c. Premises Liability No. 08CA2342. Burbach v. Canwest Investments, LLC. Premises Liability Statute Injuries Slip and Fall Public Sidewalk Municipal Ordinance. Plaintiff filed a claim under the premises liability statute, alleging she was injured when she slipped and fell on snow and ice that had naturally accumulated on a public sidewalk adjacent to property owned by defendant Canwest Investments, LLC (Canwest). The district court entered summary judgment in favor of Canwest, and the Court of Appeals affirmed. Plaintiff contended that the premises liability statute defines "landowner" in a way that abrogates the common law no-duty rule. The statute renders an owner of property adjacent to a public sidewalk a "landowner" of that sidewalk where a municipal ordinance requires the adjacent landowner to remove snow and ice from the sidewalk. The Court disagreed. An injured person may bring a claim under the premises liability statute only against a "landowner." Under Colorado common law, an owner of property adjacent to a public sidewalk does not have a duty to pedestrians to keep the sidewalk reasonably clear of naturally accumulated snow and ice. Here, it is undisputed that the sidewalk was publicly owned and that Denver s snow removal ordinance does not create civil liability to pedestrians for a violation. Thus, Canwest was not a landowner of the public sidewalk under the premises liability statute, and the premises liability statute did not operate to abrogate the common law no-duty rule, notwithstanding a Denver ordinance requiring it to clear the sidewalk of naturally accumulated snow and ice. Further, Canwest did not assume a duty to plaintiff by complying with the snow removal ordinance on other occasions. Therefore, Canwest was not legally responsible for the condition of the sidewalk under the premises liability statute, and the district court properly granted summary judgment in Canwest s favor. No. 09CA0234. Humphrey v. Whole Foods Market Rocky Mountain/Southwest, L.P. Premises Liability Statutory Employer Immunity. In this premises liability negligence action, plaintiffs James Humphrey and Twin City Fire Insurance Company (Twin City) appealed the district court s summary judgment in favor of defendant (Whole Foods). The judgment was affirmed. While employed as a delivery driver for Phil s Fresh Foods (Phil s), Humphrey made weekly deliveries of Phil s burritos to a Whole Foods store. Phil s workers compensation insurer, Twin City, paid benefits to Otis, Coan & Peters, LLC Page 78 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Humphrey after he was injured inside the store while performing stocking and inventory services as part of a delivery. Humphrey then filed suit against Whole Foods, claiming his injuries resulted from Whole Foods negligence. The district court granted summary judgment in favor of Whole Foods. On appeal, plaintiffs contended that the district court erred in concluding that Whole Foods was Humphrey s statutory employer under 8-41-401(1)(a), C.R.S. The Court of Appeals disagreed. An employer is a statutory employer if the services the employee provides are part of the employer s regular business such that, if they were not provided by the subcontractor, the employer s own employees would have to provide them. Here, the facts were undisputed that (1) a contract existed between Phil s and Whole Foods for the sale, delivery, stocking, and inventorying of the burritos; and (2) Whole Foods is a grocery retailer whose regular business includes presenting food for sale to its customers. Had Humphrey not provided stocking and inventory services, it would have been necessary for Whole Foods employees to provide those services. Thus, Whole Foods was Humphrey s statutory employer. Because Phil s carried workers compensation insurance when Humphrey was injured, Whole Foods was immune from common law negligence liability in connection with Humphrey s injuries. The district court therefore properly granted summary judgment in favor of Whole Foods. Nos. 09CA1567 & 09CA1568. Anderson v. Vail Corporation; Ciocian v. Vail Corporation. Summary Judgment Ski Safety Act. Jesse Anderson (skier #1) and Melissa Ciocian (skier #2) and Chris Ciocian appealed entries of summary judgment in favor of Vail Corporation (ski resort) in their respective cases. The two appeals were consolidated because they presented virtually identical facts and the same legal issues, and the parties were represented by the same counsel. The Court of Appeals determined there was an issue of material fact regarding signage, vacated the trial court s order granting summary judgment, and remanded the case for further proceedings. Primrose, an intermediate trail, commences at the top of Larkspur Bowl. Primrose splits and the left fork remains Primrose but becomes a beginner s trail; the right fork becomes Bitterroot, an intermediate trail. Two ski lifts terminate just below the split, allowing access to Primrose, Bitterroot, and an unrated glade. Downhill from the split, the two trails are connected by Overshot, a catwalk, which traverses the glade commencing at Primrose and terminating at Bitterroot. Overshot is an intermediate trail because it terminates at an intermediate trail. The downhill edge of Overshot is a ski area boundary. Immediately below the boundary are three private residences, and below them is a paved road. Skier #1 s accident occurred on February 25, 2007; skier #2 s accident occurred on March 3, 2007. Both skiers entered the glade and proceeded until they reached Overshot, crossed it, and continued downhill through the glade. Shortly after crossing Overshot, the skiers skied off a 19-foot retaining wall, dropped onto the paved road, and sustained injuries. There is no dispute that there were nine ski area boundary signs facing uphill across Overshot on the left as the skiers crossed; however, an expert opined there was a lack of sufficient signage. The skiers skied through a gap approximately 56 yards downhill from the last sign and 16 yards uphill from a rope closure. The trial court granted summary judgment in favor of the ski resort. On appeal, the skiers argued that the trial court improperly made findings of fact on disputed issues of material fact and the Court agreed. Otis, Coan & Peters, LLC Page 79 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 The skiers argued that the ski resort acted negligently and violated the Ski Safety Act by failing to properly mark the ski area boundaries. They argued specifically that the ski resort violated 33-44- 107(6), C.R.S,.,which provides: "The ski area operator shall mark its ski area boundaries in a fashion readily visible to skiers under conditions of ordinary visibility." The trial court found the boundary markers met this standard. The skiers presented evidence that the boundary signs were not readily visible to skiers in their line of travel. An expert testified the signs and ropes were not visible; ski patrol members responding to the incidents admitted they could see how this could be the case. This evidence, viewed in the light most favorable to skiers, presented a genuine issue of material fact as to whether the boundary signs were readily visible. Thus, summary judgment was inappropriate, the trial court s orders were vacated, and the case was remanded. d. Products Liability No. 08SC970. Boles v. Sun Ergoline, Inc. Strict Products Liability Exculpatory Agreements. Petitioner sought review of the court of appeals decision affirming summary judgment in favor of Sun Ergoline, Inc., the manufacturer of a tanning booth in which she was injured. The district court found that petitioner s strict products liability claim was barred by a release she signed as a condition of using the tanning facilities. On direct appeal, the court of appeals concluded that the district court correctly applied the four-part test prescribed by the Supreme Court for determining whether exculpatory agreements releasing service providers from liability for their simple negligence comport with public policy. The Supreme Court disagreed, holding that the district court erred in analyzing the release question as if plaintiff s claim were one for damages alleging simple negligence. A consumer s agreement to release a manufacturer from liability for injuries caused by its product cannot, consistent with public policy, extend to claims for strict products liability. Accordingly, the summary judgment was reversed. e. Tortious Interference No. 09CA1130. Condo v. Conners. Summary Judgment Tortious Interference Civil Conspriacy LLC Operating Agreement. Elizabeth Condo (assignee) is the former wife of Thomas Banner (assignor), who was formerly a member of Hut at Avon, LLC (LLC). Defendants (partners) were the other members of the LLC, and the LLC was represented by Wendell Porterfield (attorney). As part of a divorce settlement, the assignor agreed to assign to the assignee his right to monetary distributions from the LLC. The partners refused to consent to the draft assignment tendered to the LLC. Nevertheless, the assignor finalized and executed the assignment. The partners subsequently purchased the assignor s one-third membership interest from him. Assignee sued the partners and the attorney for tortious interference with contract and civil conspiracy. The trial court granted the partners and the attorney s motions for summary judgment on both claims because it concluded the assignment was void. The Court of Appeals affirmed, based on a different rationale. Otis, Coan & Peters, LLC Page 80 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 For a claim for tortious interference with a contract to be viable, a valid contract must exist. Because there was an anti-assignment clause in the operating agreement requiring the written approval of all assignments by all other members, the Court concluded the assignment was void and the claim was not viable. Because the Court concluded the partners and the attorney did not tortiously interfere with the assignment, the assignee cannot show an unlawful overt act to support her civil conspiracy claim. The assignment therefore is void and unenforceable as a matter of law. The Court affirmed the trial court s grant of summary judgment concerning the tortuous interference claim. 18. WATER LAW No. 09SA75. Concerning the Application for Water Rights of Farmers Reservoir and Irrigation Company: City of Englewood v. Burlington Ditch, Reservoir and Land Co. No-Call Agreements Subordination Agreements Presumption of Injury Proof of Injury. In 1999, Farmers Reservoir and Irrigation Company (FRICO); Burlington Ditch, Reservoir and Land Company; and Henrylyn Irrigation District (collectively, the Companies) entered into a settlement agreement with the City and County of Denver, acting by and through its Board of Water Commissioners (Denver), to resolve various water rights issues. Among other things, the agreement provided that the Companies would not place a call on their 1885 Oasis storage right, which is the most senior storage right on the South Platte River and consists of reservoir priorities Nos. 1 and 2 for filling Barr and Oasis Reservoirs. The City of Englewood challenged this agreement before the water court, Division 1, in an action to resolve applications by the Companies and others for changes in water rights, alternate points of diversion, an appropriative right of exchange, a new junior water right, and a plan for augmentation. In a pretrial order, the water court found that: (1) the agreement was a valid no-call agreement; (2) the agreement did not constitute a change of water right or subordination agreement; (3) Englewood did not have a right to maintenance of stream conditions created by the placement of a call; (4) there is no legally cognizable claim of injury from a no-call agreement unless it violates public policy; and (5) Englewood s claims are not entitled to a presumption of injury, and Englewood has the burden of proof of injury. After a two-day trial, the water court further ruled that Englewood failed to present evidence that the agreement violated either public policy or the one-fill rule. Englewood appealed these determinations by the water court and further argued that the water court erred in its rulings regarding proof of injury. The Supreme Court affirmed the judgment of the water court and held that the agreement is a valid nocall agreement. Additionally, the Court rejected Englewood s claims that the water court erred by not allowing it to rely on a presumption of injury, by prohibiting the introduction of certain evidence of injury at trial, by ignoring other evidence of injury in its ruling, and by determining that a stipulation at trial protected junior appropriators from injury. No. 09SA191. V Bar Ranch LLC v. Cotten, Division Engineer for Water Division No. 3. Water Rights Well Permits Administrative Procedure Act Appropriation State Engineer Equitable Estoppel. In this appeal from the District Court for Water Division Number 3, the Supreme Court affirmed the water court s decision affirming the State Engineer s modification of appellant s replacement well Otis, Coan & Peters, LLC Page 81 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 permit. The Court held that the State Engineer has the authority to modify previously issued well permits. Additionally, the Court held that when a decree adjudicating a groundwater right is silent as to the location of use, use of the water right is defined by the beneficial use to which the water was put at the time of appropriation. Therefore, water that, when appropriated, was applied to one parcel cannot be additionally applied to a new parcel without a water court decree allowing the change of use. Finally, the Court held that the doctrine of equitable estoppel is not applicable to this case. 19. WORKER S COMPENSATION Nos. 09SC586 & 09SC769. Benchmark/Elite, Inc. v. Simpson, and Concerning Industrial Claim Appeals Office; City of Colorado Springs v. Bennett, and Concerning Industrial Claim Appeals Office. Workers Compensation Maximum Rate of Benefits. The Supreme Court consolidated two court of appeals opinions that address statutory limits on workers compensation benefits. The Court concluded that a workers compensation claimant is entitled to the maximum rate of benefits in effect at the time of injury. In a 2008 case, Avalanche Industries, Inc. v. Clark, 198 P.3d 589, 597-98 (Colo. 2008) (section III.C.), the Court held that "time of injury" could mean either the time of accident or the time of disablement. In each of the cases here, the court of appeals relied on section III.C. of Avalanche Industries to hold that the claimant was entitled to have his benefits calculated based on the maximum rate in effect at the claimant s time of disablement. The Court held that section III.C. of Avalanche Industries was unnecessary to decide that case, and overruled the holding that the claimant s "time of injury" could mean either time of accident or time of disablement. Because the court of appeals opinions relied on section III.C. of Avalanche Industries in these cases, the Court reversed those decisions. No. 09SC612. City of Manassa v. Ruff. Workers Compensation Conflict of Interest Quasi-Judicial Actions. In this workers compensation action for disability benefits, the appellant, claimant Dale Ruff, and the appellees, the City of Manassa and Pinnacol Assurance, petitioned for review of various aspects of the court of appeals judgment. (See Ruff v. Industrial Claim Appeals Office, 218 P.3d 1109 [Colo.App. 2009]) The Industrial Claim Appeals Office had affirmed the refusal of an administrative law judge (ALJ) to disqualify an independent medical examiner (IME) due to an apparent or actual conflict of interest. The court of appeals remanded for reconsideration of whether there was an appearance of conflict, relying on its own interpretation of applicable workers compensation rules of procedure to find that the ALJ gave insufficient consideration to the IME s relationship with the insurer; however, it rejected claimant s assertion that an IME functions in a quasi-judicial capacity, with the same obligations of disclosure and disqualification as are applicable to judicial officers. Because the court of appeals erred in finding that the ALJ gave inadequate consideration to the relationship between the IME and Pinnacol Assurance, the Supreme Court reversed its order remanding for reconsideration. Because the IME would not be governed by the ethical obligations of judges, even if his determination could reasonably be characterized as a quasi-judicial action, the Court affirmed that portion of the court of appeals judgment declining to impose on him judicial ethical obligations of disclosure and disqualification. The judgment was affirmed in part and reversed in part. Otis, Coan & Peters, LLC Page 82 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 No. 09SC536. Specialty Restaurants Corp. v. Nelson. Workers Compensation Lump Sum Payments CRS 8-43-406 2007 Amendment Prospective Procedural Versus Substantive Amendments Prior Judicial Precedent. The Supreme Court affirmed the judgment of the court of appeals that a beneficiary of a workers compensation award for permanent and total disability (PTD) is entitled to an additional lump sum payment up to the maximum aggregate available, pursuant to a 2007 amendment to 8-43-406, C.R.S.. The Court held that the Colorado General Assembly s amendment is procedural in nature and is prospectively applied. Stephanie Nelson suffered an admitted work-related injury in 1990, was awarded PTD benefits in 2002, and subsequently received a lump sum payment in the amount of the statutory maximum aggregate available at the time of her injury. In 2007, the general assembly increased the maximum aggregate lump sum available, and Nelson requested an additional lump sum payment under the new statutory cap. Nelson is entitled to the additional lump sum payment, because an employee s election of a lump sum payment functions as an advance of an award of PTD benefits to which the employee already is entitled, thereby altering only the method of distribution of an existing award. A lump sum payment does not create, eliminate, or modify the parties existing rights or liabilities, which are determined as of the date of injury, but vest only on entry of an award of benefits. Accordingly, the lump sum provision is procedural in nature and applies prospectively to requests for lump sum payments filed subsequent to the amendment s date of enactment, irrespective of the date of the employee s injury. Because the court of appeals opinion in Eight Thousand West Corp. v. Stewart, 546 P.2d 1281 (Colo.App. 1976), does not constitute a prior judicial interpretation of particular language that has remained unchanged throughout subsequent amendments, it is inapposite and overruled to the extent it is inconsistent with this opinion. No. 09CA0598. Paint Connection Plus v. Industrial Claim Appeals Office. Workers Compensation Maximum Medical Improvement Final Admission of Liability Medical Reports Penalties. In this workers compensation proceeding, petitioners Paint Connection Plus (employer) and Twin City Fire Insurance Company (insurer) sought review of that part of the final order issued by the Industrial Claim Appeals Office (Panel) upholding the imposition of penalties for the filing of an invalid final admission of liability (FAL). The order was affirmed. Claimant was injured when he fell from a ladder while working for employer. The physician found that claimant had reached maximum medical improvement (MMI) for his right upper-extremity injury and had sustained a 9 percent total permanent partial impairment due to the loss of range of motion. However, the rating physician further opined that claimant was suffering from probable C6-7 right facet syndrome, chronic related to his work injury, and that claimant was not at MMI for this lesser problem. The physician recommended that claimant undergo one to three chiropractic mobilizations. In their FAL, petitioners asserted that claimant was at MMI and admitted for permanent partial disability (PPD) benefits based on the rating for claimant s right upper-extremity impairment. Claimant objected to the FAL and applied for a hearing. Petitioners contended that the administrative law judge (ALJ) erred in determining that their FAL was invalid. However, the FAL created inconsistencies with the rating physician s narrative report in violation of Department of Labor and Employment Rule 5-5(E) by failing to indicate that claimant had not yet been placed at MMI for the chronic facet syndrome or that the MMI date on the FAL form pertained exclusively to claimant s injury to his right upper extremity. Petitioners also failed to attach the Otis, Coan & Peters, LLC Page 83 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 supporting medical reports to the FAL. Accordingly, the ALJ s determination that the FAL was invalid must be affirmed. The Court of Appeals also rejected petitioners contention that the ALJ erred by imposing penalties. The failure to comply with a procedural rule is a failure to obey an order within the meaning of 8-43- 304(1), C.R.S. The record contains substantial evidence supporting the ALJ s finding that petitioners FAL did not comply with 8-43-203(2)(b)(II), C.R.S., or Department of Labor and Employment Rules 5-5(A) and (E), and that their conduct was not objectively reasonable. Accordingly, the imposition of penalties was affirmed. 20. ZONING/LAND USE No. 09SC68. Board of County Commissioners of Boulder County v. Hygiene Fire Protection District. Zoning County Planning Act CRS 30-28-110(1) Location and Extent Review Planned Unit Development Act Special Districts Condemnation Authority. To fulfill its statutory duty to provide fire protection services, the Hygiene Fire Protection District (District) intended to condemn a parcel of land within a planned unit development (PUD) for a new fire station. Boulder County refused to process the District s application for location and extent review, asserting that the District first needed to seek modification of the PUD pursuant to 24-67-106(3)(b), C.R.S., of the PUD Act. The court of appeals upheld the trial court s judgment granting summary judgment for the District, and the Supreme Court affirmed. Under 30-28-110(1), C.R.S., of the County Planning Act, the governing body of a political subdivision with special statutory purposes may overrule county disapproval of a public project. Because the PUD Act functions as a type of zoning regulation and a supplement to the County Planning Act, the Court held that the long-standing rule that other political subdivisions may override the restrictions of local zoning regulations applies to the provisions of the PUD Act. Nothing in the PUD Act s modification provision functions to alter this conclusion. The Colorado General Assembly intended that a county not be able to use its zoning authority to frustrate the efforts of other political subdivisions to carry out their statutory duties. Accordingly, although Boulder County is entitled to conduct location and extent review, it may not condition acceptance of the District s application for location and extent review on county approval of a PUD modification. The judgment was affirmed. 21. MISCELLANEOUS OR OTHERWISE INTERESTING CASES No. 08CA2719. Edmond v. City of Colorado Springs. Motion to Recuse Process Service In Forma Pauperis Status Failure to Prosecute. Plaintiff Michael Edmond appealed the trial court s judgment dismissing his complaint against defendants and an order denying his motion to recuse the trial court judge. The judgment was reversed, the order was affirmed, and the case was remanded. Officers arrested Edmond in November 1999 and obtained a search warrant for his residence. In September 2000, the district court judge presided over a preliminary hearing in Edmond s criminal case. Edmond was convicted. In December 2003, Edmond moved for return of property seized during the search and production of documents, which the court granted in October 2004. Edmond was then Otis, Coan & Peters, LLC Page 84 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 informed by the district attorney s office that some of the property seized during his arrest had been lost or destroyed. Edmond filed a complaint against defendants for his lost or destroyed property. The trial court eventually dismissed his complaint based on his delay and failure to prosecute. On appeal, Edmond contended that the trial court judge abused his discretion in denying the motion to recuse himself. The Court of Appeals disagreed. The mere fact that a trial judge presided over an earlier case against a party is not a ground for disqualification, and Edmond did not allege any facts that reasonably supported his belief that the judge was biased or prejudiced. Thus, the trial court did not abuse its discretion. Edmond contended that the trial court erred in not effectuating service of process by delivering copies of his summons and complaint to the sheriff. The Court agreed. Once the trial court had in its possession copies of Edmond s summons and complaint, it was required to give those documents to the sheriff to effectuate service of process. Because the trial court did not determine that Edmond s claims were frivolous or filed in bad faith, the trial court erred in not effectuating service of process by delivering the requisite copies to the sheriff. Edmond contended that the trial court erred in dismissing his complaint for failure to prosecute without giving him notice and an opportunity to be heard. The Court agreed. The record shows that the court acknowledged receipt of a sufficient number of copies of the complaint to serve all named defendants prior to dismissing Edmond s complaint, and Edmond provided addresses on at least two occasions for the purpose of service of process for all defendants before the court dismissed his complaint for failure to prosecute. Further, Edmond designated defendants as unknown and provided adequate descriptions of these unknown persons in his complaint. Therefore, dismissal for failure to prosecute on all of these issues was improper. No. 09CA0798. Metal Management West, Inc. v. State of Colorado. Motor Vehicle 42-4-2202, C.R.S. Scrap Parts Recycling Daily Record 42-5-105, C.R.S. Plaintiff Metal Management West, Inc. appealed the district court s summary judgment in favor of defendants. The judgment was affirmed in part and reversed in part. Plaintiff purchased scrap metal, including automobiles, as part of its metal recycling business. Defendants are law enforcement entities charged with enforcing statutes in the jurisdiction within which plaintiff operates its business. Plaintiff s employee was criminally cited for failing to comply with 42-4-2202 and 42-5-105, C.R.S., after he accepted for recycling "a piece of scrap metal" that defendants considered to be a motor vehicle. Pursuant to C.R.C.P. 57 and 65(a), plaintiff sought a declaratory judgment concerning 42-4-2202 and 42-5-105, C.R.S., as well injunctive relief. The district court entered judgment as a matter of law in favor of defendants on all of plaintiff s claims. On appeal, plaintiff argued that 42-4-2202, C.R.S., excludes a "scrap partial vehicle shell," or alternatively, that the statute is unconstitutionally vague on its face or as applied to plaintiff in this case. The Court of Appeals disagreed. The definition of "motor vehicle" in 42-1-102(58), C.R.S., which controls in the context of the recycling statute, read as a whole, means a motor vehicle that is or was self-propelled. Therefore, a person of common intelligence does not have to guess at the meaning of the term "motor vehicle" and it is not unconstitutionally vague on its face or applied to plaintiff in this case. To hold otherwise would defeat the intent of the statute to deter motor vehicle theft. Otis, Coan & Peters, LLC Page 85 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Plaintiff also sought a declaratory judgment that 42-5-105, C.R.S., "contains no requirement that the identification numbers on all motor vehicle equipment, attachments, accessories, or appurtenances be recorded as part of the daily record." The statute requires recording vehicle identification numbers of only motor vehicles themselves. Therefore, this portion of the summary judgment was reversed, and the district court was directed to grant a declaration that 42-5-105, C.R.S., does not require plaintiff to record a vehicle identification number, as defined in 42-5-101(11), C.R.S., other than for "motor vehicles," as defined in 42-5-101(5), C.R.S. Colorado Supreme Court Issues Currently Pending Review Colorado Ethics Watch v Senate Majority Fund, LLC, et al.: Whether the court of appeals properly interpreted and applied for the purpose of expressly advocating the election or defeat of a candidate as it appears in the definition of expenditure in article XXVIII, section 2(8)(a) of the Colorado Constitution. The Glenelk Association, Inc. v. Lewis: Whether the court of appeals erred by deciding that the condemnor had proved necessity and scope of the proposed easement without examining the purported "practical use of the property" for which the taking is claimed to determine whether the taking is "indispensable" to that use. Codiejo Apodaca, n/k/a Codiejo Martinez, and Michelle I. Carlton, v.allstate Insurance Company, an Illinois insurance corporation, and Sandra H. Perkins: Whether the court of appeals erred in deciding, on a question of first impression, that the provisions of the Colorado Uninsured Motorist Act do not apply to supplemental liability policies that provide automobile liability insurance. Denver Post Corp. v. Bill Ritter: Whether the court of appeals properly held that the personal cell phone billing statements of Governor Bill Ritter do not constitute public records subject to disclosure under the Colorado Open Records Act. Richard Jackson et al. v. Unocal Corp.: Whether the court of appeals erred by creating a "preponderance of the evidence" burden of proof in the certification of a class pursuant to C.R.C.P. 23; Whether the court of appeals erred by requiring the trial court to assess the credibility of expert testimony at the class certification stage; and Whether the court of appeals construction of C.R.C.P. 23 improperly invaded the trial court s case management discretion. South Fork Water and Sanitation District v. Town of South Fork: Whether the Municipal Permission Statute, section 31-35-402(1)(b), C.R.S. (2008), grants South Fork Water and Sanitation District veto power over the Town of South Fork s acquisition of water rights and private water systems; and Whether the court of appeals erred in holding that the District acted unreasonably in exercising its veto power under section 31-35- 402(1)(b), C.R.S. (2008) and Town of Sheridan v. Valley Sanitation Dist., 137 Colo. 315, 324 P.2d 1038 (1958). Ivar E. Larson, et al. v. Sinclair Transportation Company: Whether the court of appeals erred in concluding that section 38-5- 105, C.R.S., grants Sinclair Transportation Company the power of eminent domain; and Whether the court of appeals erred in concluding that potential safety issues and regulations need Otis, Coan & Peters, LLC Page 86 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 not be considered when determining whether "the particular land lies within a route which is the most direct route practicable," under section 38-1-101.5, C.R.S. Katherine Allen and Katherine Allen, P.C. v. Jack Steele and Danette Steele: Whether the court of appeals erred in imposing liability on attorneys to non-clients for negligent misrepresentation in light of Mehaffy, Rider, Windholz & Wilson v. Cent. Bank Denver, 892 P.2d 230 (Colo. 1995); and Whether the court of appeals erred in relying on Restatement (Third) of the Law Governing Lawyers section 15 (2000) as a basis for establishing a duty of care on a lawyer to a non-client. Harinderpal S. Ahluwalia v. QFA Royalties, LLC: Whether the court of appeals erred in finding that there was "clear and unmistakable evidence" of an agreement to arbitrate arbitrability based on an arbitration clause in the first of three agreements when the second and third agreements each contained forum selection clauses designating specified courts as the forum to resolve the parties disputes; Whether an order confirming an arbitration award is a final judgment triggering the timing requirements of C.R.C.P. 59(a) and whether a request for post-award interest is governed by C.R.C.P. 59(a); Whether the court of appeals erred in affirming the arbitrator s award of pre-award interest on future damages; and Whether the court of appeals erred in affirming the district court s award of compounded post-award interest. Daniel Shane Hassler v. Account Brokers of Larimer County, Inc: Whether the district court erred in upholding the county court magistrate s order finding that the six-year statute of limitations set forth in section 13-80-103.5(1)(a), C.R.S. (2009), began to run th e day after the sale of a repossessed vehicle rather than the day after the default of the contract to purchase the vehicle occurred. Citizens for Responsible Growth, Elbert County v. RCI Development Partners, Inc., a Colorado corporation: Whether the time for filing an appeal of a quasi-judicial decision by a board of county commissioners begins to run when the board executes the final resolution, even if the fact or date of the final decision is not public or known, or whether the time begins to run only when the final decision is made public; and Whether a party aggrieved by a decision of a board of county commissioners has the burden in a C.R.C.P. 106(a)(4) action to prove when the final decision was made by the board, if the date of the final decision is exclusively in the possession of the county and the procedures of a Rule 106 action preclude discovery and prohibit the introduction of extrinsic evidence. Alex Delano, Wolfgang Baeck, Carlos Perez, Kevin Werner, and Mark Parker v. Jeffrey M. Busch: Whether, as a matter of law, two officers of the same corporation can engage in a conspiracy with each other to commit a tort while acting within the scope of their authority and in furtherance of the corporation s interests; and Whether the court of appeals erred in reversing the trial court s findings of fact and in holding that Busch and Jeffers were acting within that scope of their authority when making the false representations. Lucht s Concrete Pumping, Inc. v. Tracy Horner and Everist Materials, LLC: Whether the court of appeals erred in concluding that the continued employment of an existing at-will employee was not adequate consideration to support a noncompetition agreement. Otis, Coan & Peters, LLC Page 87 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Legislative Update 1. CONSUMER AND COMMERCIAL TRANSACTIONS S.B. 10-155 Gift cards - limitations on issuance. An issuer of a gift card is required to redeem the gift card for cash if the amount remaining is less than $5 on request of the holder. The act prohibits an issuer of a gift card from charging any fees in connection with the issuance of the card. The act excludes from the definition of "gift card" a prefunded tangible or electronic record issued by, or on behalf of, any government agency; a gift certificate that is issued only on paper; a prepaid telecommunications or technology card; a card or certificate issued to a consumer pursuant to an awards, loyalty, or promotional program for which no money or other item of monetary value was exchanged; and a card that is donated or sold below face value at a volume discount to an employer or charitable organization for fundraising purposes. The act also makes violation of the limitations regarding gift cards a deceptive trade practice. APPROVED by Governor April 29, 2010, EFFECTIVE August 11, 2010. H.B. 10-1133 Consumer protection - Foreclosure Protection Act - equity purchasers - short sales - definitions - disclosures. The act amends key provisions of the "Colorado Foreclosure Protection Act", enacted in 2006, including the definition of an "equity purchaser", and imposes additional duties on equity purchasers. A person who acquires title to a residence in foreclosure as a result of a short sale in which an appropriate addendum to the contract is included and all statutorily required disclosures are made is exempted from the definition of an "equity purchaser". "Home owner" is redefined to mean the owner of a dwelling who occupies it as a principal place of residence, rather than the owner of a residence in foreclosure. For purposes of the equity purchaser provisions, "residence in foreclosure" is defined as a residence that is occupied as the home owner's principal residence, is encumbered by a residential mortgage loan, and as to which an equity purchaser knows or should know that the loan is at least 30 days in default. A "short sale" is defined as a transaction in which a residence in foreclosure is sold for less than the amount due under a recorded lien, and the lien is released. The requirement that a sales contract be in "bold-faced" type is eliminated and, instead, contracts must be "legible". A uniform 9- point type size is adopted for certain documents. If the equity purchaser knows or should know that the home owner's principal language is other than English, a separate disclosure form in the home owner's principal language must be provided along with the contract. In a short sale transaction in which the equity purchaser intends to sell the property to another purchaser within 14 days, the equity purchaser must disclose to the seller and the seller's lender, as well as to any subsequent purchasers and their lenders, the terms of the intended resale including the amount to be paid. APPROVED by Governor June 7, 2010, EFFECTIVE January 1, 2011 H.B. 10-1351 Deferred deposit loans - limitation on lender charges. The act creates a 6-month minimum loan term and no maximum loan term for each deferred deposit loan. Lenders must accept prepayment from a consumer with no penalty for the early payment. In addition to the finance charge currently allowed for each loan, lenders may charge an interest rate of 45% and must pay a prorated refund of the interest rate back to the consumer if the loan is prepaid. A lender may charge a monthly maintenance fee for each outstanding deferred deposit loan and charge an interest rate of 45% upon renewal of a deferred deposit loan. A lender is no longer required to offer a consumer a payment plan after a 4 th consecutive loan. The act creates an unfair or deceptive trade practice for specific violations of the "Deferred Deposit Loan Act". APPROVED by Governor May 25, 2010, EFFECTIVE August 11, 2010 Otis, Coan & Peters, LLC Page 88 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 H.B. 10-1400 Refund anticipation loans - facilitators - electronic return originator registration - mandatory disclosures to consumers - investigation and enforcement - penalties - repeal. A "refund anticipation loan" is a loan that is made to a Colorado consumer based on the consumer's anticipated income tax refund. Currently, Colorado does not regulate issuers of refund anticipation loans, commonly known as "refund anticipation loan facilitators". In order to implement the recommendations of the "2010 Sunrise Review: Refund Anticipation Loan Facilitators" conducted by the department of regulatory agencies, the act creates the "Refund Anticipation Loans Act", which: Requires a refund anticipation loan facilitator to be registered with the federal internal revenue service as an electronic return originator or directly employed by a person so registered; Specifies information that a refund anticipation loan facilitator is required to disclose to a consumer; Makes a willful violation of the "Refund Anticipation Loans Act" a misdemeanor that is punishable by a fine of up to $500, imprisonment in county jail for up to one year, or by both such fine and imprisonment; and Requires the administrator of the "Uniform Consumer Credit Code" (code) to enforce the act and applies to the act the same civil actions available to the administrator under the code. The act takes effect on November 1, 2010, and, unless extended by bill, is repealed on September 1, 2019. APPROVED by Governor May 19, 2010, EFFECTIVE November 1, 2010 2. CORPORATIONS AND ASSOCIATIONS H.B. 10-1403 Secretary of state - notifications - periodic reporting - appropriation. The act allows the secretary of state (secretary) to notify persons regulated under the charitable solicitations law regarding missed filing deadlines by means other than the mail. The secretary may notify any person about any matter arising under Colorado's corporation, partnership, and association laws in a manner determined by the secretary, and the secretary may use a phase-in period or other method, including exemptions, to mitigate hardship caused by electronic notification. Several redundant notification laws are repealed. Current law requires corporations, partnerships, and associations to file annual reports with the secretary. The act allows reporting entities to elect biennial reporting rather than annual reporting and to select an anniversary month different from the default anniversary month. The remaining portions of the act change references to "annual" reporting to "periodic" reporting and make conforming amendments or other nonsubstantive changes to the law. The act appropriates $105,200 from the department of state cash fund to the department of state for the implementation of the act. APPROVED by Governor June 10, 2010, EFFECTIVE August 11, 2010 3. COURTS S.B. 10-63 State public defender - alternate defense counsel - claims against attorneys. If a person files a claim for damages arising from professional negligence as a result of an act or omission committed by an attorney while performing duties pursuant to a contract with the office of alternate defense counsel (OADC): The person shall file with the court a certificate of review; The attorney shall not be required to file an answer to the complaint until 20 days after the person files the certificate of review; and Otis, Coan & Peters, LLC Page 89 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 The office of the attorney general shall represent the attorney unless the OADC determines that the act or omission that gave rise to the claim was not performed during the course of the attorney's contractual duties. A court may order an OADC contract attorney to reimburse the office of the attorney general for reasonable costs and attorney fees if a court determines that the act or omission that gave rise to a claim was not performed during the course of the attorney's contractual duties. If a person files a claim for damages arising from professional negligence as a result of an act or omission committed by an attorney while performing duties pursuant to a contract with the OADC, and the attorney's contract for malpractice insurance requires the attorney to notify the insurance carrier upon the filing of a claim against the attorney, the insurance carrier may not consider the claim in determining the amount of the attorney's future malpractice insurance premiums unless a certificate of review is timely filed with the complaint. APPROVED by Governor April 15, 2010, EFFECTIVE August 11, 2010 S.B. 10-80 Civil protection orders - protection of animals owned by party. A court-entered civil protection order may restrain a party from threatening, molesting, injuring, killing, taking, transferring, encumbering, concealing, or disposing of an animal owned, possessed, leased, kept, or held by any other party. A court-entered civil protection order may also specify arrangements for possession and care of any animal owned, possessed, leased, kept, or held by any other party. The definitions of "abuse of the elderly or of an at-risk adult", "domestic abuse", and "protection order" are amended as necessary to include threats or actions against animals. APPROVED by Governor April 12, 2010, EFFECTIVE July 1, 2010 S.B. 10-147 Assets exempt from execution. The act concerns assets that are exempt from creditors. Currently $50,000 of the cash surrender value of life insurance policies is exempt. The act increases the exemption to $100,000 of the cash surrender value. APPROVED by Governor April 21, 2010, EFFECTIVE September 1, 2010 H.B. 10-1023 Evidence - civil actions - employers. In a civil action, information regarding an employee's criminal history shall not be introduced as evidence against an employer if: The nature of the criminal history does not bear a direct relationship to the facts underlying the cause of action; A court order sealed any record of a criminal case or a pardon was issued before the occurrence of the civil action; The record of an arrest or charge did not result in a criminal conviction; or The employee or former employee received a deferred judgment at sentencing and the deferred judgment was not revoked. This act does not affect the existing statutory requirements for conducting criminal history background checks in hiring for certain employment. APPROVED by Governor March 29, 2010, EFFECTIVE August 11, 2010 H.B. 10-1104 Veterans' treatment court - authority to seek federal funds - chief judge may establish a court. The state court administrator has the authority to seek federal funding as it becomes available on behalf of the state court system for the establishment, maintenance, or expansion of veterans' treatment courts. The chief judge of a judicial district can establish an appropriate program for the treatment of Otis, Coan & Peters, LLC Page 90 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 veterans and members of the military. APPROVED by Governor April 16, 2010, EFFECTIVE April 16, 2010 H.B. 10-1132 Production of business records - service of process time and method - copy of the attestation with the records. The act allows a peace officer to serve a court order for production of records to a business at a convenient time for the business that may be outside its normal business hours. The peace officer may serve the court order electronically or by any other means used by the business to receive service of process. Under current law, the business must provide a notarized attestation of accuracy for the records it produces. The act clarifies the contents of the attestation. The business need only provide a copy of the attestation when it produces the records but must provide the original attestation within 10 days after providing the records. The act adds employees of the Colorado department of labor and employment to the definition of Colorado criminal investigator under the production of business records statute. APPROVED by Governor April 15, 2010, EFFECTIVE August 11, 2010 H.B. 10-1168 Full compensation for injured party - limit on subrogation rights of insurer. Under current law, an insurer that pays benefits to a person who is injured due to an act or omission of a third party may, under some circumstances, obtain repayment of those benefits out of any recovery paid to the injured party, regardless of whether the injured party has been fully compensated for his or her losses. The act limits the ability of an insurer to obtain a repayment of benefits, through reimbursement or subrogation, if the repayment would cause the injured party to not be fully compensated. Additionally, if the injured party has been fully compensated and the repayment is allowed, the amount of the repayment is limited to the amount actually paid by the insurer or, for health care services provided on a capitated basis, 80% of the usual and customary charge for the same service charged by health care providers that provide care on a noncapitated basis in the geographic region. Finally, an insurer must pay its proportionate share of attorney fees and costs incurred by the injured party in obtaining the settlement or judgment. However, an insurer may seek repayment of amounts paid for property damage or uninsured or underinsured motorist coverage, and such insurers are not required to share in the injured party's attorney fees and costs. If an injured party makes a recovery of an amount that is less than the total amount of coverage available under any third-party liability insurance policy or uninsured or underinsured motorist coverage, the injured party is presumed to be fully compensated. A rebuttable presumption that an injured party has not been fully compensated is created if the injured party makes a recovery that equals the amount of coverage available under all third-party liability insurance policies and uninsured or underinsured motorist coverages. Further, when an injured party obtains a judgment, the amount of the judgment is presumed to be the amount necessary to fully compensate the injured party. An injured party who obtains a recovery that is less than the sum of all of his or her damages and who intends to limit an insurer's ability to obtain repayment of benefits paid to or on behalf of the injured party must notify the insurer within 60 days after obtaining each recovery, and the notice is to specify the total amount and source of the recovery, any applicable coverage limits, and the amount of costs charged to the injured party. If the insurer disputes the injured party's claim, the insurer may request arbitration of the dispute within 60 days after receipt of the notice from the injured party. The parties are to jointly appoint an arbitrator or, if they cannot agree on a single arbitrator, each party appoints an arbitrator and the 2 arbitrators together select a third arbitrator to serve on a panel to resolve the dispute. If the arbitrator determines that the recovery does not fully compensate the injured party, the insurer has no right to reimbursement or subrogation. An insurer is precluded from bringing a direct action against the at-fault third party for subrogation or reimbursement unless the injured party has not pursued a claim against the at-fault third party by 60 days before the statute of limitations expires, in which case an insurer may bring a direct action against the at-fault third party. The Otis, Coan & Peters, LLC Page 91 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 third party cannot add the insurer as a copayee on any check or draft in payment of a settlement or judgment for the injured party. Insurers cannot delay, withhold, or reduce benefits either because the obligation to pay benefits results from the acts or omissions of a third party or as a means to compel reimbursement or subrogation. Additionally, if an insurer obtains reimbursement of benefits paid, the insurer must apply the amount of the reimbursement as a credit against any applicable lifetime cap on benefits contained in the applicable policy or plan. The act does not affect: Statutory liens granted to hospitals that provide care to an injured party; Lien rights of the department of health care policy and financing with regard to medical benefits provided under a medical assistance program pursuant to the "Colorado Medical Assistance Act"; or Subrogation and lien rights granted under the "Workers' Compensation Act of Colorado". APPROVED by Governor April 28, 2010, EFFECTIVE August 11, 2010 H.B. 10-1215 Cash bonds - application to bond to outstanding costs. Under current law, when a defendant is no longer liable for a cash bond, the court returns the deposit for the bond to the depositor. Under the act, the court is allowed to apply the bond deposit to satisfy any outstanding court costs, fees, fines, restitution, or surcharges the defendant may owe if the defendant is the depositor. In cases in which the defendant is not the depositor and the depositor consents in writing, the court may apply the bond deposit toward court costs, fees, fines, restitution, or surcharges owed by the defendant. APPROVED by Governor April 15, 2010, EFFECTIVE August 11, 2010 H.B. 10-1291 Witness fees - appropriation. The act eliminates the statutory, daily witness fee for attending certain courts and for attending a coroner's inquest. For fiscal year 2010-11, the act reduces the appropriation to the judicial department for district attorney mandated costs by $17,300 to reflect the elimination of witness fees. APPROVED by Governor May 27, 2010, EFFECTIVE May 27, 2010 H.B. 10-1395 Court of appeals - jurisdiction - interlocutory appeals. The act provides that the Colorado court of appeals shall have initial jurisdiction over interlocutory appeals from certified questions of law in civil cases. A majority of the judges who are in regular active service on the court of appeals and who are not disqualified may order, if approved by rules promulgated by the Colorado supreme court, that an interlocutory appeal permitted by the court of appeals be heard or reheard by the court of appeals en banc. APPROVED by Governor June 7, 2010, EFFECTIVE August 11, 2010 4. FINANCIAL INSTITUTIONS S.B. 10-42 At-risk adults - financial exploitation investigations - prior consent to release financial records. Under the "Protection Against Financial Exploitation of At-risk Adults Act" in the "Colorado Human Services Code", current law requires banks, industrial banks, federal savings banks, savings and loan associations, building and loan associations, trust companies, and credit unions (financial institutions), only upon request of a consumer, to offer the requesting consumer, who is either over 60 years of age or is an at-risk adult, the option to sign an informed consent form for placement in the Otis, Coan & Peters, LLC Page 92 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 consumer's file or records, thereby allowing the financial institution to disclose the consumer's financial information or records in connection with an investigation of known or suspected financial exploitation of the consumer. This provision is relocated to Colorado consumer affairs statutes with the following substantive modifications: Financial institutions, which are redefined to include a state or federal bank, savings bank, saving and loan association, building and loan association, trust company, or credit union, are required to inform all account holders who are at-risk adults of their right to voluntarily sign and have placed in their bank records a consent form; Financial institutions are permitted to offer the prior consent form to all account holders, regardless of whether they are at-risk adults; The name of the form is changed from "informed consent" to "prior consent" form to reflect that the account holder is giving his or her consent, prior to any alleged or suspected financial exploitation activities, to the release of otherwise confidential records so as to allow a financial institution to alert or notify local law enforcement and the county or district department of social services (county departments) of potential financial exploitation and provide access to those records to expedite an investigation and minimize losses suffered by victims as a result of financial exploitation; The attorney general is to work with stakeholders, including the divisions of banking and financial services in the department of regulatory agencies, representatives of financial institutions, county departments, local law enforcement, district attorneys, and at-risk adults, to develop a standard prior consent form that may be used by financial institutions; A financial institution is not obligated to report known or suspected financial exploitation of an account holder. "At-risk adult" is defined, consistent with the "Colorado Criminal Code", as a person who is: 60 years of age or older; or 18 years of age or older and is a person with a disability. APPROVED by Governor June 8, 2010, EFFECTIVE June 8, 2010 5. GOVERNMENT COUNTY S.B. 10-100 Local improvement districts - energy efficiency improvements and renewable energy improvements - multi-county districts - qualified community locations. Current law prohibits local improvement districts for energy efficiency improvements and renewable energy improvements (energy LIDs) to cross county boundaries. The act allows such a district formed by a county to be created in 2 or more counties. The definition of "renewable energy improvement" for energy LIDs formed by both counties and municipalities will include improvements located at a qualified community location rather than directly on a residential or commercial building. "Qualified community location" is defined, for purposes of investor-owned utilities, as a community solar garden as defined in House Bill 10-1342. Energy LIDs formed by a county are exempted from a variety of inappropriate requirements that are otherwise generally applicable to local improvement districts. The inclusion contract or agreement must notify the homeowner of the district's right to accelerate payments upon default. The municipality or county must notify the record owner of any first Otis, Coan & Peters, LLC Page 93 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 priority mortgage or deed of trust that the property has been included in the district. APPROVED by Governor May 5, 2010, EFFECTIVE May 5, 2010 S.B. 10-138 Property tax - appeal of valuation - costs and fees. A taxpayer and a county shall each be responsible for their respective costs when a taxpayer appeals the valuation of the taxpayer's property in an appeal from a county board of equalization. APPROVED by Governor April 21, 2010, EFFECTIVE August 11, 2010 S.B. 10-182 County officials' salary commission - 2010 report to general assembly - recommendations - implementation. The following 2 requests made by the county elected officials' salary commission in its 2010 report to the general assembly are implemented: The frequency of when the commission will meet and submit its report to the general assembly is changed from every 4 years to every 2 years. The timing is also changed from the second regular session to the first regular session of a general assembly. The language regarding payments to a county surveyor is clarified to reflect that the board of county commissioners may compensate the county surveyor for any additional work beyond the scope of the original contract. APPROVED by Governor May 26, 2010, EFFECTIVE May 26, 2010 H.B. 10-1007 Clerk and recorder - filing fees. A county clerk and recorder will charge $10 for the first page of each document filed and $5 for each additional page. The additional fee for documents that require multiple entries in the grantor or grantee index is eliminated. The existing $5 per page fee is retained for certain filings made by the executive director of the department of revenue. The act applies to documents filed on or after July 1, 2010. APPROVED by Governor April 5, 2010, EFFECTIVE April 5, 2010 H.B. 10-1057 Fees - county sheriff - service of process - mileage. The maximum fee a sheriff may charge for making a return on a summons not served is raised from $16 to $20. County sheriffs may implement a zone- or zip code-based mileage structure, which will allow sheriffs to charge a flat rate for any service of process within a specified zone or zip code. Additionally, for service of multiple papers on one person, or on different persons at the same place of service for the same action, the prohibition on constructive mileage is eliminated and, instead, the sheriff is allowed to charge the standard rate for the first service of process and $10 for each additional service of process. Finally, a sheriff may establish billing accounts for licensed attorneys and licensed collection agencies that have a principal office in the state. APPROVED by Governor April 15, 2010, EFFECTIVE August 11, 2010 H.B. 10-1062 County officers - crime insurance in lieu of surety bond requirement - repeal of obsolete language. In addition to the surety bonds that county officers have been required to purchase to ensure the faithful performance of duties, counties have the option to purchase crime insurance coverage to protect against potential malfeasance of county employees and any of the following county officers or their deputies while in office: County commissioners, clerk and recorders, sheriffs, coroners, treasurers, assessors, and surveyors. Additionally, obsolete references to clerks of district and county courts as county officers are repealed. Such court clerks are now employees of the judicial branch. APPROVED by Governor April 21, 2010, EFFECTIVE August 11, 2010 Otis, Coan & Peters, LLC Page 94 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 H.B. 10-1117 Taxation - real and personal property - abatement - electronic notices of valuation and tax statements. Prior to the passage of the act, a board of county commissioners or a county assessor could issue an abatement or refund up to $1,000 to a taxpayer without the approval of the property tax administrator. This amount is raised to $10,000. Additionally, a county assessor may send notices of valuation for real and personal property to a taxpayer electronically if the taxpayer so requests. If the taxpayer later requests to cease the electronic transmissions, the assessor must comply with the request and send all future notices of valuation by regular mail. Finally, a county treasurer, at the treasurer's discretion, may send tax statements for real and personal property to a taxpayer electronically if the taxpayer so requests or may send electronic notice of the availability of an electronic statement to the taxpayer. If the taxpayer later requests to cease the electronic transmissions, the treasurer must comply with the request and send all future tax statements by regular mail. APPROVED by Governor May 5, 2010, EFFECTIVE August 11, 2010 H.B. 10-1118 Land use - regulation of distressed real property. A board of county commissioners has the power to require the owner or the lienholder or receiver in possession of distressed real property to secure, maintain, and insure the property and to provide the county planning and zoning department with contact information for the party responsible for the preservation of the property. APPROVED by Governor June 7, 2010, EFFECTIVE August 11, 2010 6. GOVERNMENT LOCAL S.B. 10-116 Public entity - contracts - change orders - periodic cost reimbursement. Contracts between a public entity and a contractor or designer for a public works project must contain a clause requiring the public entity to pay the contractor on a periodic basis for any costs incurred by the contractor for work performed after the contractor has submitted an estimate of cost and until the change order is finalized. APPROVED by Governor March 31, 2010, EFFECTIVE August 11, 2010 S.B. 10-142 Sales and use tax - deficiency notice. A deficiency notice issued by a local government to a taxpayer for sales or use taxes that are due shall contain a notification of the time limit to file a protest to the notice. A taxpayer shall file any protest to the deficiency notice with the local government within 30 days after the notice. APPROVED by Governor March 29, 2010, EFFECTIVE March 29, 2010 S.B. 10-181 Municipal lands connected to water right - authority to lease. Currently, a municipality is allowed to purchase water rights, to purchase and hold the lands with which the water rights are connected, and to sell such lands when deemed advisable by the governing body of the municipality. The act allows the city to also lease such lands. APPROVED by Governor June 7, 2010, EFFECTIVE August 11, 2010 H.B. 10-1107 Urban renewal - prohibition on inclusion of agricultural land within urban renewal area - exceptions to prohibition - calculation of taxes to be paid for purposes of determining available tax increment. Any area that has been designated as an urban renewal area is prohibited from containing any agricultural land unless: The agricultural land is a brownfield site as designated by the United States Otis, Coan & Peters, LLC Page 95 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 environmental protection agency; The area containing the agricultural land is at least two-thirds contiguous with urban-level development and at least one-half of the area consists of urban-level development that is determined to constitute a slum or blighted area; The agricultural land is an enclave within the territorial boundaries of a municipality and the entire perimeter of the enclave has been contiguous with urban-level development for a period of not less than 3 years; Each public body that levies an ad valorem property tax on the agricultural land agrees in writing to the inclusion of the agricultural land within the urban renewal area; or The agricultural land was included in an approved urban renewal plan prior to June 1, 2010. In addition to the exceptions specified above, for a period commencing on June 1, 2010, and concluding June 1, 2020, no area that has been designated as an urban renewal area shall contain any agricultural land unless: The agricultural land is contiguous with an urban renewal area in existence as of June 1, 2010; The person who is the fee simple owner of the agricultural land as of June 1, 2010, is also the fee simple owner of land within the urban renewal area as of June 1, 2010, that is contiguous with the agricultural land; and Both the agricultural land and the land within the urban renewal area will be developed solely for the purpose of creating primary manufacturing jobs, and any ancillary jobs necessary to support such manufacturing operations, for the duration of the period during which property tax revenues in excess of a base amount are paid into a special fund for the purpose of financing an urban renewal project. "Primary manufacturing jobs" is defined to mean manufacturing jobs that produce products that are in excess of those that will be consumed within the boundaries of the state and that are exported to other states and foreign countries in exchange for value. Where agricultural land is included within an urban renewal area under the conditions specified in the act, the county assessor is required to value the agricultural land at its fair market value in making the calculation of the taxes to be paid to the public bodies solely for the purpose of determining the tax increment available. The act shall not affect the actual classification, or require reclassification, of agricultural land for property tax purposes, and nothing in the act shall affect the taxes actually to be paid to the public bodies, which shall continue to be based on the agricultural classification of such land unless and until it has been reclassified in the normal course of the assessment process. The grounds allowing counties to challenge information contained in urban renewal impact reports are expanded. The required agreement to be entered into by or among the municipality and urban renewal authority and county taxing entities in the case of tax increment financing may provide for a waiver of certain requirements under the urban renewal law. Urban renewal plans are required to include a legal description of the urban renewal area, including the legal description of any agricultural land proposed for inclusion within the urban renewal area pursuant to the conditions specified in the act. A city and county is exempted from submitting an urban renewal impact report, which, under current law, the governing body of the municipality or urban renewal authority is required to submit to the board of county commissioners. Not later than 30 days after the municipality has provided the county assessor notice that the urban renewal plan contains tax increment financing Otis, Coan & Peters, LLC Page 96 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 provisions, the assessor may provide written notice to the municipality if the assessor believes that agricultural land has been improperly included in the urban renewal area under the conditions specified in the act. If the notice is not delivered within the 30-day period, the inclusion of the land in the urban renewal area as described in the urban renewal plan shall be incontestable in any suit or proceeding notwithstanding the presence of any cause. If the assessor provides written notice to the municipality within the 30-day period, the municipality may file an action in state district court for an order determining whether the inclusion of the land in the urban renewal area is consistent with one of the conditions specified in the act and shall have an additional 30 days from the date it receives the notice in which to file the action. If the municipality fails to file such an action within the additional 30-day period, the urban renewal area shall not include the agricultural land. APPROVED by Governor April 14, 2010, EFFECTIVE June 1, 2010 H.B. 10-1205 Land use planning - notification by local governments to military installations - specified land use developments. The act modifies statutory provisions requiring local governments to notify military installations of certain land use developments occurring near such installations in the following respects: The prior definition of "military installation" is modified so that the term now means either a base, camp, post, station, airfield, yard, center, or any other land area under the jurisdiction of the United States department of defense, including any leased facility, that is larger than 500 acres, or the Greeley Air National Guard station. Current law requires a local government with a military installation within its territory to submit to the commanding officer of the installation information about proposed changes to the local government's comprehensive plan or land development regulations that would affect any territory of the local government within 2 miles of the installation. The act modifies these requirements by requiring a local government with territory within 2 miles of a military installation to timely submit to the installation commanding officer and the flying mission commanding officer, or their designees, information related to proposed zoning changes, and amendments to the local government's comprehensive plan, or land development regulations that, if approved, would affect the use of any area within 2 miles of the installation. The act also gives the military installation 14 days within which to review the information and submit comments to the local government on the impact the proposed changes may have on the mission of the military installation. A county or municipality is not required to prepare a new master plan in order to satisfy any of its requirements. Military installation" is added to the list of public places or facilities that may be included in a county or municipal master plan. APPROVED by Governor May 21, 2010, EFFECTIVE August 11, 2010 7. GOVERNMENT MUNICIPAL H.B. 10-1063 Publication of legal notices or advertisements - exception for municipalities without newspaper satisfying requirement of legal publication. Current law specifies that no publication, no matter how frequently published, shall be considered a legal publication unless it has been admitted to the United States mails with periodicals mailing privileges. The act specifies that if no newspaper is published within the territorial boundaries of Otis, Coan & Peters, LLC Page 97 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 a municipality that satisfies the existing requirements for a legal publication, but a newspaper that provides local news and that would satisfy the requirements to be admitted to the United States mails with periodicals mailing privileges but for the absence of paid circulation is distributed within such territorial boundaries, the municipality may publish any legal notice or advertisement required by law in such newspaper. APPROVED by Governor March 18, 2010, EFFECTIVE March 18, 2010 H.B. 10-1259 Annexation - harmonization of statutory annexation provisions with constitutional annexation provisions. The state constitution, as a result of a citizen initiative adopted by the voters in 1980 (Poundstone II), prohibits an unincorporated area from being annexed to a municipality unless one of the following constitutional annexation requirements first has been met: The question of annexation has been submitted to the vote of the landowners and the registered electors in the area proposed to be annexed, and the majority of the persons voting on the question have voted for the annexation; The annexing municipality has received a petition for the annexation of the area signed by persons comprising more than 50% of the landowners in the area and owning more than 50% of the area, excluding public streets and alleys and any land owned by the annexing municipality; or The area is entirely surrounded by or is solely owned by the annexing municipality. The act amends the "Municipal Annexation Act of 1965" (annexation statute) to conform its provisions to Poundstone II. In particular, the act: Amends the legislative declaration in the annexation statute to add as a purpose of the statute the implementation of the constitutional annexation requirements. Amends various provisions of the annexation statute to reference Poundstone II as a requirement that must be satisfied in addition to the statutory requirements already contained in the applicable provisions. Substitutes the terms "landowner" and "registered elector", as applicable, in place of the terms "qualified elector" and "nonresident landowner". This change relates to approval of an annexation by the persons residing in the affected area. Specifies that persons comprising more than 50% of the landowners in an area and owning more than 50% of the area, excluding any land owned by the annexing municipality, may petition the governing body of any municipality for the annexation of the territory. Under current law, this requirement applies to the landowners of more than 50% of the area but is silent with respect to land owned by the annexing municipality. The act also clarifies the requirements affecting a petition for annexation to specify that a petition must contain an allegation that the signers of the petition comprise more than 50% of the landowners in the area and own more than 50% of the area proposed to be annexed, excluding public streets and alleys and any land owned by the annexing municipality. Under current law, the signers must comprise the landowners of more than 50% of the territory included in the area proposed to be annexed, but current law is silent with respect to land owned by the annexing municipality. Otis, Coan & Peters, LLC Page 98 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Eliminates redundant and potentially confusing language currently in the annexation statute. APPROVED by Governor May 6, 2010, EFFECTIVE August 11, 2010 8. GOVERNMENT - SPECIAL DISTRICTS S.B. 10-46 Forest improvement districts - boundaries within the boundaries of a county or municipality. Previously, the governing board of a county or municipality could only propose the creation of a forest improvement district if the boundaries of the proposed district would include the entire territory of the county or municipality. A governing body of a county or municipality may now propose the creation of a forest improvement district with boundaries not necessarily encompassing the entire territory of the county or municipality. APPROVED by Governor March 10, 2010, EFFECTIVE March 10, 2010 S.B. 10-53 Metropolitan sewage disposal districts - use of weighted voting in specified circumstances. Prior to the adoption of the act, state law required any action of a board of directors of a metropolitan sewage disposal district to have the approval of a majority of board members present and voting at a regular or special meeting at which a quorum consisting of one-half of the total membership of the board of directors is present. The act excepts weighted voting conducted in accordance with the bylaws of the district, applicable resolutions of the board, or other laws or rules governing the procedures of the board from these requirements. APPROVED by Governor March 10, 2010, EFFECTIVE August 11, 2010 H.B. 10-1143 Regional transportation district - authorization for agreements to provide residential and other uses at transit facilities. Under existing law, the regional transportation district (RTD) may negotiate and enter into agreements with any person or public entity for the provision of retail and commercial goods and services to the public at transfer facilities. The act permits RTD to negotiate and enter into similar agreements for the provision of residential or other uses at transfer facilities, so long as such uses are consistent with local laws relating to planning and zoning. The act also modifies an existing prohibition on the uses of a transfer facility that reduce transit services or reduce the availability of adequate parking for the public to include residential or other uses among the uses prohibited. The act modifies another existing prohibition on the uses of a transfer facility that create a competitive disadvantage for nearby businesses to only include uses involving the provision of retail or commercial goods or services. Finally, the act requires the provision of retail and commercial goods and services or the provision of residential or other uses at a transfer facility to be conducted in a manner that encourages multimodal access for all users. APPROVED by Governor April 15, 2010, EFFECTIVE August 11, 2010 H.B. 10-1243 Special districts that provide transportation-related services - authorization to impose sales tax and join a regional transportation authority. The act authorizes a county that previously was not authorized to levy a sales tax for transportation-related purposes due to having a population of 100,000 or less to levy such a tax. The act authorizes a special district that is a metropolitan district organized with street improvement, safety protection, or transportation powers, as defined by existing law, to levy a uniform voter-approved sales tax in any unincorporated territory of the district subject to the following conditions: Proceeds of any sales tax levied shall be used only to fund Otis, Coan & Peters, LLC Page 99 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 transportation-related safety protection and street improvement in areas of the metropolitan district in which the tax is levied, and transportation, as described in, and limited by, specified existing statutory provisions; The department of revenue shall collect, administer, and enforce any sales tax levied; and Revenues raised by a metropolitan district through the levy of a sales tax may not be used to supplant any state funding that the district or any county, municipality, regional transportation authority, or other governmental entity that has transportation-related powers and that includes territory located within the district would otherwise be entitled to receive from the state. The act authorizes a special district that is organized with street improvement, safety protection, or transportation powers, as defined by existing law, to join a regional transportation authority. APPROVED by Governor June 8, 2010, EFFECTIVE August 11, 2010 H.B. 10-1328 Colorado new energy improvement district - creation - powers and duties. The Colorado new energy improvement district (district) is created as an independent public body corporate and a public instrumentality performing an essential public function. The act clarifies that, under applicable Colorado supreme court case law, the district is not subject to the provisions of the taxpayer's bill of rights and specifies the qualifications, manner of appointment, and terms of the board of directors of the district. The purpose of the district is to help provide the special benefits of new energy improvements to owners of eligible residential real property who voluntarily join the district by establishing, developing, financing, and administering a new energy improvement program (program) in counties that have approved the conduct of the program by the district. The program allows the district to provide assistance to any such owner in completing a new energy improvement on the owner's property or participating with other property owners in completing an interacting group of new energy improvements that directly benefit the owner's property through a qualified community location by providing reimbursement or a direct payment for all or a portion of the cost of completing the new energy improvement or interacting group of improvements. The powers and duties of the district include but are not limited to the power to: Develop and implement a process by which an owner of eligible real property may join the district; Impose special assessments on eligible real property included in the district; and Issue bonds payable from the special assessments for the purpose of generating the moneys needed to make a reimbursement or a direct payment to district members for all or a portion of the cost of completing new energy improvements. The public utilities commission (commission) is required to: Determine the extent to which the marketing, promotional, and other efforts of a utility for which the commission has developed demand-side management targets or goals have contributed to energy efficiency improvements funded by the district; and Allow a utility to count the related energy savings towards compliance with the targets or goals using any method deemed appropriate by the commission. No later than June 30, 2014, and no later than June 30 of every fifth year thereafter, the state auditor is required to conduct or cause to be conducted a performance audit of the district and the program and to prepare and present to the legislative audit committee a report and recommendations on each audit conducted. The clean energy improvement debt reserve fund is created. The principal of the fund shall consist of up to $10,000,000 of legally available moneys from nonstate sources under the control of the governor's energy office and fees paid to the state treasurer by local improvement districts or other special districts that finance renewable energy improvements or clean energy improvements as Otis, Coan & Peters, LLC Page 100 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 compensation for the privilege of being authorized by the state treasurer and the governor's energy office to rely upon the fund as a secondary debt reserve fund and thereby lowering their financing costs. All fund investment earnings are required to be credited to the fund, and the fund is continuously appropriated to the state treasurer for use, under specified circumstances and subject to specified limitations, as a backup source of moneys for the payment of principal and interest owed to holders of the bonds issued by such districts. Nothing in the act creates any state debt, requires the state to make bond payments on behalf of a district or from any source of moneys other than the clean energy improvement debt reserve fund, or requires the state to fully pay off any outstanding bonds of a district that cannot make scheduled bond payments. The act guarantees that the state will not do anything to impair the contractual rights of purchasers of bonds issued in reliance upon the existence of the clean energy improvement debt reserve fund. APPROVED by Governor June 11, 2010, EFFECTIVE June 11, 2010 H.B. 10-1362 Designation of inactive status - return to active status. The act establishes procedures by which a special district may designate itself as an inactive special district and by which an inactive special district may return to active status. The board of directors (board) of an inactive special district may adopt a resolution that describes and affirms its qualifications for its inactive status and may direct that a notice of inactive status be filed with specified persons or entities. Such notice is to be filed on or before December 15 of the year in which the resolution for inactive status is adopted. When the board determines that the district will be returning to active status, the board is required to adopt a resolution that declares the district's return to active status and authorizes the filing of a notice of the district's determination to return to active status. The act specifies additional requirements the special district must satisfy to return to active status. The various forms of notice concerning inactive status the special district is required to complete are to be standard forms developed by the division of local government and made available on the division's web site. The special district is required to be on inactive status during the period commencing with its notice of inactive status until it issues a notice of its determination to return to active status. During the period that a district is on inactive status, the district is forbidden from issuing any debt, imposing a mill levy, or conducting any other official business other than conducting elections and undertaking procedures necessary to implement the district's intention to return to active status. Inactive special districts are required to file with the state auditor and the division of local government on or before December 15 of each year in which the district is on inactive status a notice that it is continuing in such status for the next fiscal year. An inactive district is also exempt from certain specified statutory provisions. APPROVED by Governor June 7, 2010, EFFECTIVE August 11, 2010 9. GOVERNMENT STATE S.B. 10-31 Economic development - Colorado regional tourism act - gambling-related activities. Any proposed regional tourism project is prohibited from including a facility that would offer, make available, or facilitate gambling-related activities. Gambling-related activities include betting, wagering, or payments made on or in connection with one or more games that qualify as gambling or limited gaming as defined by law. APPROVED by Governor March 31, 2010, EFFECTIVE August 11, 2010 Otis, Coan & Peters, LLC Page 101 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 S.B. 10-55 Department of revenue - division of motor vehicles - highway users tax fund - state titling and registration system - gifts, grants, and donations. The division of motor vehicles in the department of revenue may accept gifts, grants, and donations for the purpose of developing and operating the Colorado state titling and registration system. Any gifts, grants, or donations received will be credited to the Colorado state titling and registration account in the highway users tax fund. Any unexpended and unencumbered moneys remaining in the account at the end of any fiscal year will remain in the account and will not be transferred to the general fund or any other fund. APPROVED by Governor April 21, 2010, EFFECTIVE April 21, 2010 S.B. 10-87 Lobbyists - registration - fiscal year orientation - fines and penalties for non-disclosure - revocation of registration - prohibited practices - appropriation. The act makes the following changes related to the regulation of lobbyists by the secretary of state (secretary): The act orients the registration of lobbyists around a fiscal year that commences on July 1 of a calendar year and concludes on June 30 of the following calendar year instead of around a calendar year as under existing law. Currently, the secretary imposes a fine of $10 per day for each day after the deadline for filing a disclosure statement that a lobbyist fails to file the statement. The act maintains the $10 fine for the first 10 business days on which the disclosure statement has not been filed after the day due. For failure to file a disclosure statement by the close of the 11th business day on which the disclosure statement has not been filed after the day due, in addition to the existing criminal penalty, the act requires the secretary to impose an additional penalty of $100 for each day thereafter that a disclosure statement is not filed by the close of the business day. The act also clarifies that the secretary may excuse the payment of any such penalty, or reduce the amount of any penalty imposed, for bona fide personal emergencies. The act authorizes the secretary to set the registration fee for professional lobbyists by rule. The act requires the secretary to revoke the certificate of registration of any individual whose lobbying privileges before the general assembly have been suspended following action on a written complaint against the person in accordance with the general assembly's rules on lobbying practices. In the case of misconduct by an individual culminating in the revocation of a certificate of registration, the act requires the secretary to additionally indicate the revocation of the individual's certificate of registration on the web site maintained by the secretary and requires the secretary to send written notice of the revocation by United States mail to each principal for whom the individual lobbies as shown on the individual's registration statement. In the case of misconduct by an individual culminating in a resolution of censure that has been adopted by the general assembly in accordance with its rules on lobbying practices, the act also requires the secretary to send a copy of the resolution by United States mail to each principal for whom the individual lobbies as shown on the individual's registration statement. The act also grants the secretary authority to revoke or suspend the registration of a lobbyist for failure of the lobbyist to pay any penalty fines. Otis, Coan & Peters, LLC Page 102 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 The act specifies a list of practices that a person engaged in lobbying is prohibiting from doing. The act appropriates $32,560 from the secretary of state cash fund to the department of state for the implementation of the act. APPROVED by Governor June 10, 2010, EFFECTIVE June 10, 2010 S.B. 10-123 Secretary of state - on-line publications. The act replaces references in the "State Administrative Procedure Act" to the print publication of the code of Colorado regulations and the Colorado register with similar references to the electronic version of these publications. In cases of conflict between the electronic and print versions of a document, the act gives precedence to the electronic version unless it is conclusively shown that the electronic version contains an error. In addition, the Colorado register is authorized to include public notices that are not related to rule-making as well as those that are related to rule-making. APPROVED by Governor April 15, 2010, EFFECTIVE April 15, 2010 S.B. 10-166 Lease-purchase agreements - authority for treasurer - transfer to department of personnel - cash fund. Current law requires a lease-purchase agreement for real property that requires total payments in excess of $500,000 to be approved by a bill other than the general appropriation bill or a supplemental appropriation bill. Under this act, the treasurer is authorized to enter into a lease-purchase agreement for real property and associated personal property, on behalf of the department of personnel (department), if, at the time the agreement is executed, specified factors exist, including: The amount of the rent appropriated for the state agency to be located in the building plus any anticipated rent from private persons exceeds the amount of annual costs for lease-purchase payments, operating costs, maintenance costs, and all other lease-purchase costs; and The plan for the transaction is approved by the executive director of the department, the office of state planning and budgeting, and the capital development committee of the general assembly. After execution of the agreement, the treasurer shall transfer benefits and responsibilities to the department. The act specifies terms that must be and may be included in the lease-purchase agreement. Moneys appropriated to state agencies for rent are to be transferred to the lease-purchase servicing account within the capital construction fund. Moneys in the account shall be used only for the costs of a building subject to a lease-purchase agreement. If private tenants are to be in the building, the executive director is authorized to hire a building manager or lease the space to a private person. Moneys received from private tenants are to be credited to the lease-purchase rental cash fund and shall only be used to pay the costs of the building. APPROVED by Governor April 29, 2010, EFFECTIVE April 29, 2010 H.B. 10-1045 Secretary of state - department of revenue - change of personal address on file - appropriation. The secretary of state and the department of revenue must include links on their respective official web sites whereby a person who is visiting the official web site of one department may follow the link to the other department's official web site and change his or her address electronically with the second department. A person may update his or her address with the department of revenue electronically via the department of revenue's official web site. The act defines the term "last-known address" for the purpose of providing certain motor vehicle notices to licensees or registered owners of motor vehicles. A person who has moved must change the address information for vehicle Otis, Coan & Peters, LLC Page 103 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 registration purposes with the county and not the department of revenue. APPROVED by Governor May 27, 2010, EFFECTIVE July 1, 2011 H.B. 10-1137 Statutes and administrative rules - drafting - people first language. People first language must be used when drafting any new or amended state statutes and administrative rules. People first language is language that refers to persons with disabilities as persons first. For example, people first language uses the term "persons with developmental disabilities" rather than "the developmentally disabled". APPROVED by Governor April 15, 2010, EFFECTIVE August 11, 2010 H.B. 10-1180 Performance-based incentive for film production activities in Colorado - criteria for qualification. The act adjusts the qualifying criteria for a film production company applying for a performance-based incentive for film production activities in Colorado on or after the effective date of the act. Specifically, the act: Allows an incentive for a television commercial; Incorporates the definition of "qualified payroll expenditure" into the definition of "qualified local expenditure" for ease of understanding. There are conforming amendments throughout the bill to accommodate this change. Removes the requirement that the production company must spend at least 75% of its production expenditures on qualified local expenditures and qualified local payroll expenditures; Adds a requirement that the production company must employ a workforce made up of at least 25% Colorado residents for any in-state production activities; Reduces the minimum total qualified local expenditures for a production company that does not originate the film production activities in Colorado from $1 million to $250,000; and Lowers the actual qualified local expenditures necessary to receive an incentive from equal to or exceeding the projected expenditures to equal to or exceeding the minimum total qualified local expenditures. APPROVED by Governor May 18, 2010, EFFECTIVE May 18, 2010 H.B. 10-1182 Renewable energy - Colorado clean energy development authority - powers and duties - loans and financing agreements. The act expands the types of loans and financing agreements the Colorado clean energy development authority may make to facilitate electric power interconnection projects. APPROVED by Governor May 5, 2010, EFFECTIVE May 5, 2010 H.B. 10-1333 Office of the governor - green jobs Colorado training program - advisory council - funding - review - appropriation. The act creates the green jobs Colorado training program, which is a 2-year pilot program. The pilot program will offer grants to applicants that train individuals for jobs in the wind, solar, renewable energy, and energy efficiency industries. Funding for the program will be from federal moneys received by the department of labor and employment for the purposes of the pilot program and from moneys from the governor's energy office. The pilot program will be administered by the newly created green jobs Colorado advisory council (advisory council), which consists of 17 members as designated in the act. The advisory council will also receive and review grant applications, award grants to applicants who Otis, Coan & Peters, LLC Page 104 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 meet the criteria specified in the act, establish reporting requirements for grant recipients, develop internal operation procedures, and coordinate the activities of any other state department, office, or agency in so far as those activities may relate to green jobs. The executive director of the department of labor and employment will evaluate the pilot program and report his or her findings to the governor and specified legislative committees. APPROVED by Governor June 11, 2010, EFFECTIVE June 11, 2010 H.B. 10-1393 Web-based system - government revenue and expenditures data - allowable exclusions and aggregation - appeal process - duty of state officers. In 2009, the governor issued an executive order to create a web-based system that allows public access to government revenue and expenditures data, which system is commonly known as the "transparency online project", and the web-based system was modified by a subsequent law. The webbased system is further modified to: Expand the type of information that may be aggregated or excluded therefrom; Require a description of the excluded information; Create a process for challenging an exclusion; Permit the chief information officer of the state and the state controller to reasonably rely on representations by a state agency regarding the information to be included in the web-based system; and Clarify that web-based system reports are to be made available for download. APPROVED by Governor May 27, 2010, EFFECTIVE May 27, 2010 10. HEALTH & ENVIRONMENT S.B. 10-109 Medical marijuana - physician-patient relationship - state health agency rule-making - physician recommendation requirements - physician violations enforcement - appropriations. Under the act, the state health agency designated by the governor to administer the medical marijuana program will promulgate new rules related to standards for issuing registry identification cards, documentation for physicians who prescribe medical marijuana, claims of indigence related to the application fee, and sanctions for physicians who violate the act. A physician who certifies that a patient can use medical marijuana shall: Certify certain information to the state health agency and maintain a record-keeping system for his or her medical marijuana patients; Identify in the certification the debilitating medical condition that forms the basis of the certification; and Not receive remuneration from or offer it to a primary caregiver, distributor, or any other provider of medical marijuana. The act creates an enforcement process for physicians who violate the state constitution, state statutes, or promulgated rules related to medical marijuana. For alleged violations that relate to a physician's standard of care, the board of medical examiners may investigate and sanction those violations. For violations that are related to improper medical marijuana recommendations, the state health agency shall conduct a hearing on the alleged violation and, upon finding a violation, may impose sanctions. The act requires a medical marijuana patient with a valid registration card who is convicted of a drug offense and sentenced to drug treatment or the division of youth corrections in the department of human services to seek immediate renewal of the registration card based on the recommendation of a court-appointed physician. The act requires that a parent who submits a medical marijuana registry Otis, Coan & Peters, LLC Page 105 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 application for his or her child have his or her signature notarized on the form. The act adds the medical marijuana program to the list of statutes that involve medical records. APPROVED by Governor June 7, 2010, EFFECTIVE June 7, 2010 S.B. 10-194 Home care agencies - licensure - entities providing certain services to persons with developmental disabilities. Current law requires a home care agency, which is an entity that manages and offers, directly or by contract, skilled home health services or personal care services to a home care consumer in the home care consumer's temporary or permanent home or place of residence, to be licensed by the department of public health and environment. The act requires community centered boards and service agencies that provide skilled home health services or in-home personal care services to persons with developmental disabilities to apply for licensure by March 1, 2011. On and after September 1, 2011, it will be unlawful for a community centered board or service agency to conduct or maintain home care agencies that provide skilled home health services or in-home personal care services unless the community centered board or service agency is licensed as a home care agency. The act excludes qualified early intervention service providers from the scope of the term "home care agency". APPROVED by Governor May 21, 2010, EFFECTIVE May 21, 2010 H.B. 10-1042 Air quality - permits - notice for construction permits - violations of the open burning law. Instead of conducting a review by the air quality control commission (commission) for all permits that required 5 or more hours of professional staff time to process, the act requires the commission to report permit information on stationary industrial sources of pollution in its annual report to the public. The act makes explicit an exemption from permitting allowed under the federal "Clean Air Act" for small non-title V sources of air pollution. An entity with a construction permit can notify the division of administration within 15 days after beginning construction activity rather than 30 days prior to beginning construction activity. The act changes the civil penalty from $100 per day to up to $500 per day for a violation of the open burning law by a person who conducts a burn for noncommercial purposes without a permit. The civil penalty for a second violation is up to $1,000 per day and the penalty for a third or subsequent violation is up to $1,500 per day. APPROVED by Governor May 6, 2010, EFFECTIVE September 1, 2010 H.B. 10-1050 Administration - end-of-life directive forms - availability. The act allows a public or private entity, including but not limited to a nonprofit organization, that facilitates the exchange of health information among emergency medical technicians, doctors, hospitals, nursing homes, pharmacies, home health agencies, health plans, and local health information agencies through the use of health information technology to facilitate the voluntary, secure, and confidential exchange of forms containing advanced directives regarding a person's acceptance or rejection of life-sustaining medical or surgical treatment. The department of public health and environment is required to include on its public web site home page a link to forms containing advanced directives regarding a person's acceptance or rejection of life-sustaining medical or surgical treatment, which forms are available to be downloaded electronically. APPROVED by Governor April 12, 2010, EFFECTIVE August 11, 2010 H.B. 10-1125 Grease - department of public health and environment to regulate collection, transportation, storage, and disposal - registration - fee - manifests - decals - recordkeeping requirements - annual report - personal use - rules - appropriations. Otis, Coan & Peters, LLC Page 106 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 The act empowers the Colorado department of public health and environment (department) to regulate the collection, transportation, and disposal of trap grease and yellow grease (jointly referred to as "grease"). Specifically, the act requires persons, facilities, and vehicles engaged in the collection, transportation, storage, processing, or disposal of grease to register annually with the department, which registration shall include completing an application, paying a fee, and posting a surety bond or other debt instrument or method of financial assurance. Individuals employed or engaged by other persons to collect, transport, store, process, or dispose of grease are not required to separately register. Registered facilities and vehicles must display department-issued decals. In addition, registrants will be required to complete manifests, which will be available on the department's web site, containing certain information related to grease collection, transportation, and disposal, maintain certain records for a period of 2 years and furnish the records to the department upon request, and submit timely annual reports to the department. Personal use of grease requires separate registration under the act. "Personal use" is triggered when: A person intends to use the grease the person is transporting or possessing; The person is transporting or possessing a minimum quantity of grease, as determined by the commission by rule; and The person is transporting no more than 55 gallons at one time or possessing no more than 165 gallons of grease at one time. A person collecting, transporting, using, or storing grease for use by the person as biofuel is exempt from the personal use limitations on quantity and registration and fee requirements. Persons registering as personal users are prohibited from bartering, trading, or selling their grease. A personal user is prohibited from taking grease from a registrant unless the registrant gives the personal user written permission to do so. A person is allowed to store grease that the person intends to use on the person's property, and the department is vested with exclusive authority to regulate the storage of grease. In order to administer the laws related to grease regulation, the act requires the solid and hazardous waste commission (commission) in the department to promulgate rules by December 31, 2011, and periodically thereafter. Such rules shall include setting registration fees, which are capped at the following amounts: $1,040 per nonvehicle registrant; $570 per vehicle; and $96 per personal user. Existing provisions regarding solid waste-related inspection, enforcement, nuisance actions, violations, and civil and criminal penalties are applied to the provisions regulating grease. APPROVED by Governor June 7, 2010, EFFECTIVE August 11, 2010 H.B. 10-1149 Radiation control - regulation prior to disposal of sources that emit radiation - general provisions. The act updates state radiation control laws as follows: Replaces the defined term "ionizing radiation" with "radiation"; Includes radiation machines among the items for which the state board of health (state board) must promulgate rules; Repeals specific provisions containing standards for mammographer rules and deeming a person who possesses a federally issued license to have an identical state-issued license; Adds certain application fees to the services for which the state board may establish a fee schedule and specifies who shall pay such fees; Requires the state board to set fees for radiation control services at an amount Otis, Coan & Peters, LLC Page 107 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 sufficient to reimburse the state for the entire cost of those services, rather than a partial reimbursement; Repeals specific rule-making mandates to the state board to establish minimum specifications of radiation machines and radiation machine inspectors and procedures for radiation machine inspection; Repeals provisions that prohibit any person not approved by the state board from performing mammographies; Repeals the authorization to the state board to contract for audit inspections of radiation machines; Adds, as grounds for an injunction, a violation of a license or registration issued under the state radiation control laws; Makes the attorney general, rather than a district or county attorney, the authority from whom the department of public health and environment (department) may request commencement of a civil action against a person for nonpayment of fees for radiation control services and credits civil penalties collected as penalty for such nonpayment to the general fund; Subjects persons violating radiation control laws to an administrative penalty of up to $15,000 per violation per day; Requires the department to send to an alleged violator a written notice of an alleged violation; Sets forth factors that the department must consider when determining the amount of an administrative penalty for a violation of radiation control laws and requires the state board to promulgate rules for determining the amount of administrative penalties in accordance with those factors and the state "Administrative Procedures Act"; Allows the department to enter into settlement agreements regarding resolved penalties and claims under radiation control laws and permits the agreements to include payment of moneys to state or local agencies for environmentally beneficial purposes; Repeals provisions regarding orders for abatement; and Allows the department to issue a cease-and-desist order under certain conditions and describes procedures and standards for a stay of the order; and Repeals the exemptions from paying fees for licenses for radioactive materials. APPROVED by Governor May 26, 2010, EFFECTIVE May 26, 2010 H.B. 10-1229 Licensed hospitals - authentication of verbal orders. The act obligates a licensed hospital to require that all verbal orders be authenticated by a physician or responsible individual who has the authority to issue a verbal order in accordance with hospital and medical staff policies or bylaws. A verbal order must be authenticated within 48 hours after the time the order was made unless a read-back and verify process is followed. If a read-back and verify process is followed, the order may be authenticated within 30 days after the date the order was made. Current federal law requires a 48-hour authentication period unless state law designates a specific time frame for the authentication of verbal orders. APPROVED by Governor May 5, 2010, EFFECTIVE May 5, 2010 Otis, Coan & Peters, LLC Page 108 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 H.B. 10-1275 Dead human bodies - private burials - requirements. The act requires a landowner to record information about a private burial with the county clerk, setting standards for the recording including the deceased person's name, location of burial, dates of birth and death, cause of death, the legal description of the property where the body is interred, and the reception number for the death certificate. The act requires a burial permit to contain a notice of the recording requirement. APPROVED by Governor May 5, 2010, EFFECTIVE August 11, 2010 H.B. 10-1332 Medical claims - standard payment rules and claim edits - use by payers and health care providers. The act creates the "Medical Clean Claims Transparency and Uniformity Act" (act), which requires the executive director of the department of health care policy and financing (department) to establish a task force by November 30, 2010, to develop a standardized set of payment rules and claim edits to be used by payers and health care providers in Colorado. The task force is to be comprised of members of industry segments directly affected who have expertise in the areas of payment rules and claim edits and their impact on the submission and payment of health insurance claims. Members are to include: Health care providers or employees of health care providers, with representation from health care community clinics, ambulatory surgical centers, urgent care centers, and hospitals; Persons or entities that pay for health care services (payers); Practice management system vendors; Billing and revenue cycle management service companies; and State and federal government entities and agencies that pay for or are involved in the payment or provision of health care services. The task force is to track the progress of a national initiative led by the secretary of the United States department of health and human services (national initiative) in the development of a national uniform, standardized set of payment rules and claims edits so as to avoid duplication or conflict with any rules and edits developed through the national initiative. The task force is to develop a base set of rules and edits using existing national industry sources and work with the national initiative to develop a complete set of uniform, standardized payment rules and claim edits applicable to all types of professional services. The task force is required to report its recommendations to the executive director of the department and the health and human services committees of the senate and house of representatives by November 30, 2012, which shall include recommendations to: Adopt any standardized rules and edits developed by the national initiative if appropriate for Colorado, for implementation by commercial payers according to a schedule outlined under the national initiative or by January 1, 2014, whichever occurs first, and by nonprofit payers by January 1, 2015; or Adopt the rules and edits sets established by the task force if the national initiative has not come to consensus. If the task force is required to develop its own standard rules and edits, the task force is to do so by December 31, 2013, and payers are to implement the standard rules and edits according to a schedule outlined under the national initiative or by January 1, 2015, whichever occurs first, for commercial payers and by January 1, 2016, for nonprofit payers. The use of any proprietary or other claims edits to modify the payment of the charges for covered services is prohibited once the standard payment rules and claim edits are implemented. Contractual provisions are preserved between contracting persons or entities and health care providers regarding actual contracted reimbursement rates for procedures and other contractual arrangements negotiated by the parties. The department is not required to provide Otis, Coan & Peters, LLC Page 109 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 administrative or research support or assistance to the task force, and the executive director of the department is required to designate a nonprofit or private organization as the custodian of funds for the task force. The designated organization may seek, accept, and expend monetary and in-kind gifts, grants, and donations to further the task force's duties and responsibilities. The designated organization is to prepare, and submit to the executive director, an operating budget for the task force and must certify to the executive director that the task force has received sufficient funding to cover its expenses as identified in its budget. If the task force does not receive sufficient funding by June 30, 2012, the law is repealed. The act reorganizes provisions pertaining to health care contracts, without making any substantive changes to those provisions. APPROVED by Governor May 26, 2010, EFFECTIVE May 26, 2010 H.B. 10-1414 Diversion of injectable drugs - health care facility to report identifying information about individual who diverted drugs. Under current law, licensed and certified health care facilities are required to report to the department of public health and environment any occurrences at the facility in which drugs that are intended for use by patients or residents of the facility are diverted to use by other persons. The act would further require a facility, when reporting such occurrences involving injectable drugs, to also report the full name and date of birth of the individual who diverted the injectable drugs, if known. APPROVED by Governor June 5, 2010, EFFECTIVE June 5, 2010 11. HEALTH CARE POLICY AND FINANCING S.B. 10-2 Medicaid - denial of benefits by third parties - children's waiting list reduction fund. The department of health care policy and financing (department) shall provide recipients of public medical benefits with information concerning the recipient's right to appeal denials of benefits by third parties. An applicant for medical benefits, upon application and redetermination, is required to disclose any third party that might be responsible for payment of medical expenses. The department shall require entities accepting applications to enter the third-party information into the automated system. The department shall examine the feasibility of requiring the independent contractor that reviews denials of third-party claims to develop an additional process to prioritize appeals of denials. If the department includes the additional process a contract with an independent contractor, the fee may be increased to 25% of the recoveries. The amount of additional recoveries generated by the additional processes will be transferred from the general fund to the children's waiting list reduction fund (fund), which is created in the state treasury. Moneys in the fund are to be used to reduce the number of children on the waiting list for home- and community-based services. The department is directed to include in its annual report to specified committees of the general assembly information on the effectiveness of the additional processes. The authority for the additional processes is repealed, effective July 1, 2013. APPROVED by Governor June 7, 2010, EFFECTIVE June 7, 2010 S.B. 10-61 Medicaid - hospice room and board payment - appropriation. Subject to the receipt of any necessary federal authorization: The department of health care policy and financing (department) shall pay a nursing facility directly for inpatient services provided to a medicaid recipient who elects to receive hospice care rather than paying the hospice provider who then pays the nursing facility; and Hospice care may include room and board in a licensed inpatient hospice facility. The department, subject to the receipt of sufficient gifts, grants, or donations to pay Otis, Coan & Peters, LLC Page 110 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 the state's costs of preparing the request, shall request federal authorization to pay the nursing facility directly and to pay room and board in a licensed hospice facility. Such gifts, grants, or donations shall be deposited into the hospice care account in the department of health care policy and financing cash fund (cash fund) and may be used only for the state's costs of preparing the requests. APPROVED by Governor May 21, 2010, EFFECTIVE August 11, 2010 S.B. 10-115 Donation of medications, medical supplies, and medical devices - entities that may donate - limitations on donated medications. The act adds community mental health centers, acute treatment units, and licensed long-term care facilities to the facilities that may donate unused medications to be redispensed to another patient or to a nonprofit entity. It also includes unused medical supplies and devices as items that are permitted to be donated. The act specifically allows a licensed facility to donate unused medications to a person legally authorized to dispense the medications on behalf of a nonprofit entity that has the express purpose of providing medical supplies for the relief of victims who are in urgent need as a result of natural or other types of disasters. The act places additional limitations on the medications that may be donated. APPROVED by Governor April 13, 2010, EFFECTIVE April 13, 2010 S.B. 10-117 Medicaid - over-the counter medications - pharmacist authority to prescribe. Certain over-the counter medications may be provided as a service under medicaid. The medications will be provided only if they will result in overall cost savings to the state, are identified through the drug utilization review process, and are prescribed by a licensed practitioner or a qualified licensed pharmacist. The medical services board must to adopt rules to allow pharmacies to be reimbursed for dispensing the specified medications to medicaid recipients and to identify the standards for qualified pharmacists. Licensed pharmacists are required to consult with the recipient and, when appropriate, refer the recipient to an appropriate health care professional. An exception to the definition of "pharmaceutical care" is created for pharmacists to be allowed to prescribe these over-the-counter medications to medicaid recipients. APPROVED by Governor May 17, 2010, EFFECTIVE July 1, 2010 H.B. 10-1005 Colorado medical assistance act - home health care through telemedicine - appropriation. The act makes telemedicine eligible for reimbursement under the state's medical assistance program in order to comply with direction from the federal centers for medicare and medicaid services. The act eliminates incorrect references to the way reimbursement payments are made under the medical assistance program and deletes the requirement that reimbursement rates from telemedicine be budgetneutral or result in cost savings to the program. It also requires that any cost savings identified be considered for use in paying for home health care or home- and community-based services instead of requiring the savings be applied to payment for the services. The state medical services board is no longer required to consider reductions in travel costs by home health care or home- and communitybased service providers and other factors when setting reimbursement rates for services. The act requires that gifts, grants, and donations be used for the implementation of at-home telemedicine and creates the home health telemedicine cash fund for this purpose. The act appropriates $47,348 from the home health telemedicine cash fund and $75,922 from federal funds to the department of health care policy and financing for the implementation of the act. APPROVED by Governor June 7, 2010, EFFECTIVE August 11, 2010 Otis, Coan & Peters, LLC Page 111 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 H.B. 10-1027 Medicaid - hospice services - eligibility - prognosis of life expectancy - appropriation. The act increases the life expectancy prognosis from 6 months to 9 months for eligibility for hospice services under medicaid if the department of health care policy and financing (department) receives the necessary federal authorization. The department may seek and accept gifts, grants, or donations for the purpose of meeting the administrative costs associated with seeking the necessary federal authorization. The executive director of the department shall notify the revisor of statutes within 60 days after receiving the of federal authorization. APPROVED by Governor May 26, 2010, EFFECTIVE August 11, 2010 H.B. 10-1029 Discounted equipment and supplies - approved list - link to vendor list. The department of health care policy and financing ("department") will work with one or more nonprofit organizations to develop a link to a list of approved vendors of durable medical equipment and medical supplies so that persons who are on a waiting list for public medical benefits can purchase equipment and supplies at the lowest cost. The department will provide criteria for a nonprofit organization to use to approve a vendor for the vendor list, maintain the link to the list, make the link available on the department's web site, and provide copies of the list to sites where medical assistance applications are accepted through the applicant survey. APPROVED by Governor May 10, 2010, EFFECTIVE May 10, 2010 H.B. 10-1033 Medicaid - optional services - screening, brief intervention, and referral to treatment - appropriation. To the list of optional services provided to medicaid recipients, the act adds screening, brief intervention, and referral to treatment for alcohol and other substance abuse services. The additional services shall be added to the list only if House Bill 10-1284, which includes a provision transferring moneys for the costs of the services, becomes law. APPROVED by Governor June 7, 2010, EFFECTIVE August 11, 2010 H.B. 10-1043 Medicaid - AFDC eligibility - AFDC references. Prior to the federal welfare reform act "Personal Responsibility and Work Opportunity Reconciliation Act of 1996" (PRWORA), a family or child who was receiving welfare through aid to families with dependent children (AFDC) was automatically eligible for medicaid. Under PRWORA, that eligibility link was ended, and eligibility became based on a person's income and resources, independent of whether the person was participating in temporary aid to families with needy children, referred to in Colorado as Colorado works. In 1996, PRWORA required states to set the eligibility for medicaid using the same eligibility criteria that they were using for AFDC as of July 16, 1996. The medical services board is authorized to develop an incomeand resource-counting method to replace the AFDC rules that is consistent with federal law, no more restrictive than the AFDC rules, and no less restrictive than current eligibility requirements. References to the former federal AFDC program in statutes dealing with the department of health care policy and financing and the department of human services are eliminated. APPROVED by Governor April 15, 2010, EFFECTIVE April 15, 2010 H.B. 10-1330 Advisory committee to establish all-payer health claims database created - administrator appointed - report to general assembly and governor - implementation of the all-payer health claims database - funding - requirements of the database - sunset review. The act requires the executive director of the department of health care policy and financing to appoint an advisory committee to make recommendations regarding the creation of a Colorado allpayer health claims database for the purpose of transparent public reporting of health care information. The executive director is required to appoint an administrator to create the database. The administrator Otis, Coan & Peters, LLC Page 112 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 is required to seek funding for the creation of the database, develop a plan for the financial stability of the database, and report to the governor and the general assembly on the status of the funding effort and on the status of the recommendations of the advisory committee. The administrator, in consultation with the advisory committee, shall create the database if sufficient gifts, grants, and donations are received on or before January 1, 2012, to pay for the creation and maintenance of the database. The executive director shall promulgate rules to create and maintain the database. The data shall be made available to the public, state agencies, and private entities, consistent with privacy laws. The advisory committee is scheduled to sunset July 1, 2013; however, if sufficient moneys are not received by January 1, 2012, the entire act shall repeal. In addition, if at any time there is not sufficient funding to finance the ongoing operations of the database, the database shall cease operating and the advisory committee and administrator shall no longer have the duty to carry out the functions established in the act. APPROVED by Governor May 26, 2010, EFFECTIVE August 11, 2010 12. HUMAN SERVICES MENTAL HEALTH S.B. 10-153 Behavioral health - behavioral health transformation council - sunset review. The act sets forth a legislative declaration concerning the importance of creating a comprehensive approach to behavioral health issues, including mental health and substance use disorders, and establishes the behavioral health transformation council (council) to develop strategies for implementing a systemic transformation of the behavioral health care system. The governor is directed to create the council, with specified membership, whose goal it is to implement a systemic transformation of the behavioral health system. The council repeals July 1, 2020, following review under the provisions of the sunset law. APPROVED by Governor May 26, 2010, EFFECTIVE May 26, 2010 13. HUMAN SERVICES SOCIAL SERVICES S.B. 10-68 Colorado works program - eligibility requirements - appropriations. Under the act, verification of a child's immunization status will no longer be required as a condition of eligibility to participate in the Colorado works program (works program). A county department of social services will distribute literature regarding immunizations to participants at the time they submit an application for the works program. The act defines the term "assistance" to align with the use of the term in current law and under department of human services (department) rule and adds a definition for "guardian" to the works program. The defined term "specified caretaker relative" is amended to "specified caretaker" to include a person who exercises responsibility for a dependent child in his or her home. The act expands eligibility for the works program to eligible pregnant women upon verification of the pregnancy, regardless of the length of the pregnancy, and removes the asset test as a condition of eligibility for the works program. The act removes statutory language concerning the standard of need for eligibility for basic cash assistance and the calculation of the amount of a basic cash assistance grant. The department of human services, through the state board of human services, will promulgate rules concerning the standard of need for eligibility for a basic cash assistance grant. The standard of need shall not be less than the basis for standard of need that existed on July 1, 2009. The department shall also promulgate rules concerning the calculation for determining the amount of a participant's basic cash assistance grant, and that calculation shall include an earned income disregard. The department shall ensure that the earned income disregard and the calculation for a basic cash assistance grant do not result in an applicant or participant having or receiving fewer financial resources than a similarly situated applicant or participant would have had or received under previous law or rule as it existed on July 1, 2009. APPROVED by Governor April 21, 2010, EFFECTIVE January 1, 2011 Otis, Coan & Peters, LLC Page 113 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 S.B. 10-118 Child care - exempt family child care home providers - criminal history check. The department of human services is required to obtain a fingerprint-based criminal history record check on a family child care home provider who cares for a related child if the child's care is funded in whole or in part with moneys received on the child's behalf from the Colorado child care assistance program. APPROVED by Governor April 15, 2010, EFFECTIVE April 15, 2010 H.B. 10-1026 Child care - early childhood care and education - quality in child care incentive grant program. Subject to the receipt of sufficient federal moneys or gifts, grants, or donations, the act creates the Colorado quality in child care incentive grant program (grant program), with the objective of providing incentives to county or district departments of social services to increase the quality of early care and education providers and facilities in the county while allowing each grantee to retain flexibility concerning how to utilize its resources. The state board of human services is given rule-making authority to establish policies and procedures for the grant program. The department of human services is required to prepare and submit to the education and health and human services committees of the house of representatives and the senate a report describing the activities of the grant program. The act creates a separate fund to accept federal moneys and any gifts, grants, or donations received for the purpose of implementing the grant program. The grant program is repealed if sufficient gifts, grants, and donations to cover the costs of the grant program are not received in a timely fashion. APPROVED by Governor April 15, 2010, EFFECTIVE August 11, 2010 H.B. 10-1035 Child care assistance program - head start program - eligibility determinations - appropriation. The act sets forth a legislative declaration concerning the need for consistent and stable child care. It clarifies certain aspects of the Colorado child care assistance program (program) that will help provide increased stability for children and families. Beginning June 1, 2011, the eligibility redetermination period is extended for all participants in the program from 6 months to 12 months, and, for a family enrolled in both the program and a head start program, the redetermination periods are aligned. Beginning June 1, 2011, a parent is not required to report any income or activity changes during the eligibility period; except that, within the 12-month eligibility period, a family shall be required to report if the family's income exceeds 85% of the state median income. A parent shall not be determined ineligible for program moneys as a result of taking maternity leave or of being a separated spouse or a parent under a validly issued temporary order for parental responsibilities or child custody where the other spouse or parent has disqualifying financial resources. Beginning June 1, 2011, an early care and education provider (provider) is allowed to perform pre-eligibility determinations that it then forwards to the county for final determination of eligibility. The provider may provide services to the family pending the county's final determination of eligibility but shall be reimbursed for those services only if the county determines the family is eligible for services. APPROVED by Governor June 3, 2010, PORTIONS EFFECTIVE June 3, 2010 H.B. 10-1106 Relinquishment and adoption of children - considerations for placements of children - appropriations. To bring Colorado law into compliance with certain provisions of the federal "Social Security Act of 1965", as amended, certain persons residing in the state less than 2 years, specialized group home parents, and any person working in a 24-hour child care facility must submit to a federal bureau of investigation fingerprint-based criminal history records check in addition to a Colorado bureau of Otis, Coan & Peters, LLC Page 114 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 investigation fingerprint-based criminal history records check. To ensure compliance with the federal "Multiethnic Placement Act of 1994", as amended: A court, county department of social services, or licensed child placement agency must primarily consider a child's best interests when making determinations concerning the placement of the child for the purpose of adoption; The social services offered by a county or a city and county must ensure that the placement of a child is neither delayed nor denied due to consideration of the race, color, or national origin of the child or any other person unless such consideration is permitted pursuant to federal law; An agency that has responsibility for placing children out of the home must use good faith efforts and due diligence to recruit and retain prospective foster and adoptive families from communities that reflect the children's racial, ethnic, cultural, and linguistic backgrounds; A court, county department of social services, or licensed child placement agency, in making determinations concerning the placement of a child for the purpose of adoption, may not consider the racial or ethnic background, color, or national origin of either the child or a family who has submitted an application to adopt except in extraordinary circumstances; A court, county department of social services, or licensed child placement agency may not delay a foster or adoptive placement of a child based on the racial or ethnic background, color, or national origin of the child or a family who has submitted an application to adopt; and A birth parent may designate a specific applicant with whom he or she wishes to place his or her child for purposes of adoption in private adoption cases. For the 2010-11 fiscal year, the act appropriates $56,308 and 0.3 FTE to the department of public safety for allocation to the Colorado bureau of investigation from the Colorado bureau of investigation identification unit fund for fingerprint processing services related to the implementation of the act. APPROVED by Governor May 26, 2010, EFFECTIVE May 26, 2010 H.B. 10-1359 Dependency and neglect - proceedings - change of venue. The act clarifies the process for transferring jurisdiction over dependency and neglect cases to a different court. In a case where the proceedings were commenced in a county other than the county in which the child resides, the court may transfer the case to another county if the transfer would not be detrimental to the best interests of the child and the child has been adjudicated dependent and neglected or the case has been continued according to certain provisions in law. An order granting a change of venue and transferring jurisdiction shall be effective 15 days after the court signs the order and must include specific provisions. The court to which jurisdiction is transferred must hold an initial hearing in the case within 30 days after the transferring court signs the order. Motions for change of venue must be in writing, certify that the movant has complied with statutory requirements, and be mailed to all parties and attorneys of record and to the county attorney of the receiving jurisdiction. Within 15 days after a court signs an order granting a change of venue and transferring jurisdiction of the case, the transferring county department of social or human services (county department) shall provide written case information, update all documentation in the case file, including information in the state automated system, provide information concerning the physical location of persons relating to the case, schedule a Otis, Coan & Peters, LLC Page 115 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 family engagement meeting or conduct a staffing between caseworkers, and otherwise facilitate the transfer of the case. Each county department shall designate a change of venue coordinator to facilitate these transfers. In this same time frame, the transferring county attorney's office shall forward a complete copy of the case file, excluding confidential attorney-client communications, to the county attorney's office in the receiving county. The state department of human services shall promulgate rules relating to the effective transfer of case responsibilities between county departments in change of venue cases. APPROVED by Governor May 14, 2010, EFFECTIVE September 1, 2010 14. INSURANCE S.B. 10-49 Liability limits - life and health insurance protection association - increase of limits for annuity and structured settlement annuity benefits and long-term care benefits. Current law establishes the life and health insurance protection association (association) to pay benefits to an eligible person whose insurer, that is a member of the association, becomes insolvent and cannot pay benefits. Under current law, with regard to annuities and structured settlement annuities, the benefits for which the association may become liable are capped at $100,000 in the present value of annuity benefits. The current limit for health insurance benefits, which applies to long-term care benefits, is also $100,000. The annuity and structured settlement annuity benefits limits are increased to $250,000, and the limit applicable to long-term care benefits is increased to $300,000. APPROVED by Governor March 5, 2010, EFFECTIVE March 5, 2010 S.B. 10-76 Unfair compensation practices. The act defines as an unfair compensation practice and a deceptive act or practice in the business of insurance the practice of basing the compensation of a claims employee or contracted claims personnel on any of the following: The number of policies canceled; The number of times coverage is denied; The use of a quota limiting or restricting the number or volume of claims; or The use of an arbitrary quota or cap limiting or restricting the amount of claims payments without due consideration of the merits of the claim. APPROVED by Governor May 17, 2010, EFFECTIVE May 17, 2010 S.B. 10-112 Workers' compensation insurance - rate setting - public access to rate filing data. The act modifies 2 areas of current law regarding rate setting for workers' compensation insurance. First, under current law, when an insured employer agrees to pay a deductible as part of its workers' compensation insurance policy, the insurance carrier is to exclude the deductible amounts in establishing modification factors based upon experience that carriers use to determine premiums. Effective January 1, 2011, the act specifies that for purposes of experience modifications, medical only claims are to be calculated in the same manner as claims with indemnity payments. With regard to rate filings by workers' compensation rating organizations, the act makes the aggregate loss and payroll data by class code that the rating organization submits with rate filing available to the public and prohibits the use of the data for any commercial purpose. APPROVED by Governor March 31, 2010, PORTIONS EFFECTIVE August 11, 2010, PORTIONS EFFECTIVE January 1, 2011 Otis, Coan & Peters, LLC Page 116 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 S.B. 10-183 Health insurance - benefits - out-of-network charges - balance billing - prohibition on charging patient for services not covered. Prior case law interpreting Colorado's health insurance statutes had allowed "balance billing" for increased charges of out-of-network providers working in in-network facilities without the prior knowledge or consent of insured patients. The general assembly legislatively overruled that interpretation, subject to future review and repeal. The act continues indefinitely the requirement that health insurers hold consumers harmless for charges over and above the in-network rates for services rendered in an in-network facility. APPROVED by Governor May 27, 2010, EFFECTIVE May 27, 2010 H.B. 10-1004 Health insurance - plans - standardized format - policy form sections - explanation of benefits forms - commissioner rules. The commissioner of insurance (commissioner) is required to convene a stakeholder group to develop a standardized format, for use in health benefit plans, limited benefit health insurance, and dental plans, for the following: Section names and the placement of those sections in the policy forms used by carriers; and The required information for carriers to provide on an explanation of benefits form. After considering input from carriers, health care providers, consumers, and other stakeholders, the commissioner is to adopt rules to implement the standardized format, applicable to health benefit plans, limited benefit health insurance, and dental plans issued or delivered on or after January 1, 2012. APPROVED by Governor April 20, 2010, EFFECTIVE August 11, 2010 H.B. 10-1008 Health insurance - individual health coverage plans - prohibition against gender rating. The act prohibits carriers from using gender as a basis for varying premium rates for individual health insurance policies and declares premium rates based on gender to be unfairly discriminatory. The prohibition will apply to individual health coverage plans issued or renewed on or after January 1, 2011. APPROVED by Governor March 29, 2010, EFFECTIVE January 1, 2011 H.B. 10-1021 Health insurance - mandatory coverage provisions - maternity coverage - contraceptive coverage. The act requires entities issuing individual sickness and accident insurance polices in this state to provide the same coverage for maternity care as is currently mandated for all group sickness and accident insurance policies; except that individual sickness and accident insurance policies may exclude coverage for pregnancy and delivery expenses on the grounds that pregnancy was a preexisting condition. The act also requires both individual and group policies to provide coverage for contraception. APPROVED by Governor May 26, 2010, EFFECTIVE January 1, 2011 H.B. 10-1160 Wellness and prevention programs - incentives based on outcomes - limitations - requirements carriers must satisfy - review by accrediting entity - reporting by division of insurance - commissioner oversight duties - repeal. Current law allows health insurance carriers offering individual health coverage plans and small group plans, as well as the board of directors of the CoverColorado program or carriers providing health benefit plans to CoverColorado participants, to offer incentives or rewards to encourage persons covered under the plans to participate in a wellness and prevention program. The incentives or rewards can be based only on participation in a wellness and prevention program, cannot be tied to any Otis, Coan & Peters, LLC Page 117 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 particular outcome achieved by participating in the program, and may include premium discounts or rebates, modifications to copayment, deductible, or coinsurance amounts, or a combination of these incentives or rewards. The restriction on incentives based on outcomes is repealed, and carriers are now permitted to base incentives or rewards on satisfaction of a standard related to a health risk factor if the incentive or reward under the wellness and prevention program is consistent with the nondiscrimination requirements of the federal "Health Insurance Portability and Accountability Act of 1996". A "health risk factor" is defined to include health behaviors, such as smoking, diet, alcohol consumption, exercise, and exposure to UV radiation, that are known to be associated with increased mortality and morbidity for a number of conditions. Licensed health care providers, community-based wellness programs, employers, and individuals participating in an individual health coverage plan are permitted to develop wellness and prevention programs for carriers to consider in determining the types of programs to offer to covered persons. A carrier cannot use wellness and prevention programs or incentives or rewards under such programs to increase rates or premiums for any individuals or small groups covered by the carrier's plans. Carriers may offer incentives or rewards based upon satisfaction of a standard related to a health risk factor only if the incentive or reward is offered pursuant to a bona fide wellness and prevention program and only if the following standards are met: The incentive is reasonably related to the wellness and prevention program and does not exceed 20% of the cost of employee-only coverage under the health coverage or small group plan; The wellness and prevention program is consistent with evidence-based research and best practices, has a reasonable likelihood of improving the health of or preventing disease in participating individuals, contains culturally and linguistically appropriate programs and materials, and is not overly burdensome or a subterfuge for discrimination based on a health factor; The program gives individuals the opportunity to qualify for the incentive at the time of enrollment in the plan and at least annually thereafter; The full incentive is made available to all similarly situated individuals, and the program allows an individual or his or her health care provider to request a reasonable alternative standard or waiver of an otherwise applicable standard for obtaining an incentive if the standard is unreasonably difficult for the individual to meet due to a medical condition or because it is medically inadvisable for the individual to attempt to satisfy the standard; and The incentives are provided based on a program or activity that is scientifically proven to improve health, and the carrier does not provide incentives based on an individual's actual health status. Prior to offering or providing an incentive or reward, carriers are required to submit proposed incentives or rewards for review and approval by a nationally recognized nonprofit entity that accredits wellness programs. Additionally, current law requires the division of insurance (division) to collect and provide to the health care task force information regarding wellness and prevention programs being offered in the Colorado market. That information is now to be provided to the health and human services committees of the senate and house of representatives; the business, labor, and technology committee of the senate; and the business affairs and labor committee of the house of representatives by each January 1, starting January 1, 2012, through January 1, 2015. Further, the division is required to collect and submit additional information as follows: The number of business groups of one, small groups with between 2-10 employees, small groups with 11-25 employees, and small groups with 26-50 employees that are participating in a wellness and prevention program offered Otis, Coan & Peters, LLC Page 118 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 by a carrier; Information as may be required by the commissioner of insurance (commissioner) to ensure that rates filed in conjunction with wellness and prevention programs are not excessive, inadequate, or unfairly discriminatory; The dollar amount of discounts provided to the total number of small groups and to the total number of individuals participating in the program. The commissioner is to monitor and enforce the requirements of law regarding incentives and rewards and may take any market conduct action authorized by law that the commissioner deems necessary to enforce the law. The authority to offer incentives and rewards is repealed on July 1, 2015. The act applies to health coverage plans and small group plans issued, delivered, or renewed on or after July 1, 2010. APPROVED by Governor May 26, 2010, EFFECTIVE July 1, 2010 H.B. 10-1164 Motor vehicles - civil actions - appointment of agent for service of process. The act requires a motor vehicle insurance company to be appointed as an insured person's agent for service of process in a lawsuit arising from an accident that may be covered by the person's motor vehicle insurance. The amount that may be recovered from the insurance carrier is limited to the policy limits. If a potential defendant and the defendant's insurance company cannot be served in such a lawsuit, the defendant is deemed to be uninsured for the purposes of allowing recovery under an uninsured motorist coverage policy. APPROVED by Governor May 5, 2010, EFFECTIVE January 1, 2011 H.B. 10-1166 Insurance policies - plain language required. The act requires that automobile insurance policies, health benefit plans, limited benefit health insurance, dental plans, and long-term care plans that are issued or renewed on or after July 1, 2011, be written at or below the tenth-grade reading level. The act also requires the text of the policies and plans to be written in 12-point type or larger and to contain an index or table of contents if they are longer than 3 pages or 3,000 words. A violation of this requirement is an unfair or deceptive act or practice in the business of insurance. APPROVED by Governor April 20, 2010, EFFECTIVE January 1, 2012 H.B. 10-1202 Health insurance - mandatory coverage - oral anticancer medication. The act requires a health benefit plan that covers cancer chemotherapy treatment to provide coverage for prescribed, orally administered anticancer medication at a cost to the patient at the same coinsurance percentage or copayment amount as is applied to the cost of other cancer medications. The act requires that the medication be prescribed only upon a finding that it is medically necessary by the treating physician for the treatment of cancer in a manner that is in accordance with nationally accepted standards of medical practice, clinically appropriate in terms of type, frequency, extent site, and duration, and not primarily for the convenience of the patient or the health care provider. The act is applicable to policies issued or renewed on or after January 1, 2011. APPROVED by Governor April 15, 2010, EFFECTIVE January 1, 2011 H.B. 10-1220 Division of insurance - continuation of functions related to property and casualty insurance - consolidation of future sunset reviews - additional insurer practices defined as unfair or discriminatory - public access to self-audit results. The act implements the recommendations of the department of regulatory agencies in its sunset review of the functions of the division of insurance (division) related to the regulation of property and casualty, automobile, and any other entity or function that does not offer health or life insurance. The functions of the division related to the regulation of property and casualty, automobile, and any other entity or function that does not offer health or life insurance are continued for 7 years until July 1, Otis, Coan & Peters, LLC Page 119 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 2017. Additionally, the current sunset review schedule related to the other functions of the division is repealed, and the sunset review of the entire division, except for its functions related to the licensing of bail bonding agents, is consolidated into a single sunset review with a new sunset repeal date of July 1, 2017. The repeal and sunset review of the functions of the division related to the licensing of bail bonding agents are moved up by one year, to July 1, 2012. The following acts, practices, or omissions are established as unfair or deceptive acts or practices in the business of insurance: Knowingly filing with the commissioner of insurance (commissioner) or other public official, or with an employee or agent of the division, a written false statement of material fact as to the insurer's financial condition; Knowingly making any false entry of a material fact in any book, report, or other written statement of any insurer; Knowingly omitting or failing to make a true entry of a material fact pertaining to the business of the insurer in any book, report, or other written statement of the insurer; and Knowingly making any written false material statement to the commissioner or any employee or agent of the division. The following practices are established as unfair discrimination in the business of insurance: Differential treatment of individuals of the same class and essentially the same hazard in the amount of premiums, policy fees, or rates charged for health insurance, in the benefits payable under a health insurance policy, in the terms or conditions of the policy, or in any other manner; Differential treatment of individuals or risks of the same class and essentially the same hazard by refusing to insure or renew, or canceling or limiting the amount of coverage under, a policy of property or casualty insurance solely based on the geographical location of the risk, absent sound underwriting and actuarial justification; Differential treatment of individuals or risks of the same class and essentially the same hazard by refusing to insure or renew, or canceling or limiting the amount of coverage on, the residential property risk or personal property contained within the residential property, solely because of the age of the residential property; Termination or modification of coverage or refusal to issue or renew a property or casualty insurance policy solely because the applicant or insured or an employee thereof is mentally or physically impaired; Refusing to insure a person solely because another insurer has refused to write a policy or has canceled or refused to renew an existing policy. The commissioner is permitted to make available to the public, in an aggregated format, the final results of insurer self-audits and other division analyses of insurers that do not constitute formal market conduct examinations of the insurer. The statutory authorization for the formation of employers' mutual liability companies and self-insurance pools for the purpose of providing coverages such as workers' compensation coverage is repealed. The commissioner is permitted, rather than required, to rely on the advice and assistance of an association of insurance brokers to carry out the purposes of the "Nonadmitted Insurance Act". Current law allows the commissioner to perform examinations of the books, records, and accounts of licensed preneed funeral contract sellers but limits the commissioner's ability to perform such examinations to not more than once a year, unless good cause is shown. The act requires, rather than permits, the commissioner to perform examinations of the books, records, and Otis, Coan & Peters, LLC Page 120 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 accounts of each licensed preneed funeral contract seller at least once every 5 years and allows the commissioner to conduct such examinations more often as deemed necessary by the commissioner. Additionally, the commissioner is no longer required to make every reasonable effort to use division employees rather than contracting with an outside examiner to perform the examinations. The medical malpractice insurance joint underwriting association and the commercial liability insurance joint underwriting association are repealed. The act reconciles the number of days allowed until a protested motor vehicle policy change is effective to ensure that a proposed change to a policy takes effect 20 days after notice, regardless of whether the protest was dismissed without a hearing or the proposed change was found, after a hearing, to be justified. Obsolete provisions of law requiring Pinnacol Assurance (Pinnacol) to submit a plan to the commissioner regarding how it intends to accumulate a surplus fund are repealed because Pinnacol has submitted the plan and has accumulated a sufficient surplus. APPROVED by Governor May 5, 2010, EFFECTIVE July 1, 2010 H.B. 10-1227 Health Care Availability Act - financial responsibility requirements - approved nonadmitted insurers. Current law requires physicians, dentists, and health care institutions to comply with minimum financial responsibility requirements for professional liability insurance coverage as a condition of active licensure or authority to practice in Colorado. This act clarifies that this financial responsibility requirement may be satisfied by maintaining insurance through approved nonadmitted insurers authorized by law to insure in Colorado. If a health care institution does not have a commercial professional liability insurance policy, or the limits of professional liability insurance coverage are in excess of any self-insured retention amount, or there is a deductible other than zero dollars, the health care institution must furnish evidence to the department of public health and environment that the commissioner of insurance has accepted and approved an alternative form of establishing financial responsibility pursuant to rules of the commissioner of insurance. The act also makes a conforming amendment contingent on the possible passage of other legislation affecting this law. APPROVED by Governor April 15, 2010, EFFECTIVE April 15, 2010 NOTE: Specified sections of the act are contingent on House Bill 10-1260 being enacted and becoming law. House Bill 10-1260 was signed by the governor June 10, 2010. H.B. 10-1394 Construction professionals - general liability insurance - contract interpretation. The act imposes the following rules of contract construction to guide a court in construing general liability insurance policies issued to construction professionals: A court should presume that the work of a construction professional that results in property damage is an accident unless the property damage is intended and expected by the insured. When weighing conflicting provisions, the court should construe the policy and harmonize the conflicts to favor coverage. A court may consider and give weight to appropriate writings not included in the insurance contract to determine the construction professional's reasonable expectations. The insurer bears the burden of proving that a policy provision limits or bars coverage. The act prohibits a general liability policy insurer from excluding or limiting coverage of damages that occur before the policy period begins but continue after the policy began unless the insured knew of the damage when the policy period began. A policy provision Otis, Coan & Peters, LLC Page 121 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 that conflicts with this rule is unenforceable. APPROVED by Governor May 21, 2010, EFFECTIVE May 21, 2010 15. LABOR AND INDUSTRY S.B. 10-11 Workers' compensation - administration of claims - disclosure of relationship between proposed independent medical examiner and party - prohibited grounds for financial incentives - injured worker's access to communications between physicians and injured worker's employer or insurer - prohibition against reversionary interests in annuities for indemnity benefits. Prior to making a determination to strike a physician from the list of independent medical examination (IME) physicians proposed by the division of workers' compensation (division) in the department of labor and employment to perform an IME of an injured worker, a party may request and is entitled to obtain and review a summary disclosure of any business, employment, financial, or advisory relationship between a listed physician and an insurer, self-insured employer, or claimant. The director of the division (director) is to adopt rules as necessary to implement the disclosure requirements. Additionally, an insurer, self-insured employer, health care provider, or employee or contractor of an insurer, self-insured employer, or health care provider is prohibited from paying or receiving any form of financial remuneration that is based on any of the following: The number of days to maximum medical improvement; The rate of claims approval or denial; The number of medical procedures, diagnostic procedures, or treatment appointments approved; or Any other criteria designed or intended to encourage a violation of the "Workers' Compensation Act of Colorado". Payment of remuneration based on any such factors constitutes an unfair or deceptive practice in the business of insurance and subjects the insurer or self-insured employer committing the violation to penalties under the unfair or deceptive insurance practices statutes, which may be up to $3,000 per violation, not to exceed an aggregate penalty of $30,000, or, in the case of knowing violations, up to $30,000 per violation, not to exceed an aggregate penalty of $750,000 annually. An insurer or self-insured employer who commits a violation is also subject to fines as determined by the director in accordance with the "Workers' Compensation Act of Colorado". The act also prohibits a treating physician from communicating with the insurer or employer of an injured worker unless the injured worker is present or the physician makes an accurate written record of the communication and allows the injured worker access to the writing in the same manner as allowed pursuant to director rules for medical records disclosures. Finally, the act specifies that contractual provisions that establish a reversionary interest in an insurer for indemnity benefits are void as against public policy. APPROVED by Governor May 27, 2010, PORTIONS EFFECTIVE May 27, 2010, PORTIONS EFFECTIVE July 1, 2010 S.B. 10-12 Workers' compensation - penalties - increase - apportionment. The penalty for violating the workers' compensation laws is increased from up to $500 to up to $1,000. The director of the division of workers' compensation or an administrative law judge will apportion at least 50% of the penalties to the aggrieved party, with the remainder to the workers' compensation cash fund. The mental state is changed from "willfully" to "knowingly" in the statute that penalizes an insurer or a self-insured employer for denying workers' compensation medical benefits, delaying payment of medical benefits for more than 30 days, or stopping payments. No penalty will be Otis, Coan & Peters, LLC Page 122 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 due if a delay was due to excusable neglect. The director of the division of workers' compensation or an administrative law judge will apportion these penalties, in whole or part, among the aggrieved party, the medical services provider, and the workers' compensation cash fund. APPROVED by Governor May 26, 2010, EFFECTIVE August 11, 2010 S.B. 10-28 Unemployment compensation benefits - work share program established. The act requires the director of the division of employment and training in the department of labor and employment to establish a work share program allowing for the payment of unemployment compensation benefits to employees of a particular work unit whose work hours have been reduced at least 10% but not more than 40%. In order to be eligible for payment of benefits, an employer must submit a work share plan to the director for approval. The plan must apply to at least 10% of the employees in the affected unit. The plan must meet specific requirements in order to be approved by the director. Employees must also meet specific eligibility requirements in order to be eligible for the payment of benefits. The act allows for modifications to a plan if conditions of the employer change. The act also specifies that the benefits payable under the work share program are not in addition to the total maximum allowable regular unemployment benefits in a benefit year. APPROVED by Governor June 9, 2010, EFFECTIVE June 9, 2010 S.B. 10-35 Employee retirement plans - automatic enrollment - payroll deductions permitted - employer relief from liability for investment decisions. The act allows wage deductions for contributions attributable to automatic enrollment in an employee retirement plan (plan) regardless of whether the federal "Employee Retirement Income Security Act of 1974", as amended (ERISA), applies to the plan. "Automatic enrollment" is defined to allow an employee to specify the amount of his or her wage deduction, or, in accordance with the federal "Pension Protection Act of 2006", to elect to elect affirmatively to have no wage deduction, under a plan. Employers or other plan officials are relieved from liability related to investment decisions if the following conditions are met: The plan allows the participating employee at least quarterly opportunities to select investments for the employee's contributions among investment alternatives available under the plan; The employee is given notice of the investment decisions that will be made in the absence of participant direction, a description of all the investment alternatives available for employee investment direction under the plan, and a brief description of procedures available for the employee to change investments; and The employee is given at least annual notice of the actual default investments made of contributions attributable to the employee. APPROVED by Governor February 24, 2010, EFFECTIVE January 1, 2011 S.B. 10-163 Workers' compensation - procedures - applicability of Senate Bill 09-168. The act creates the following requirements with regard to workers' compensation procedures: Requires the director of the division of workers' compensation in the department of labor and employment to promulgate rules biennially that establish a single life expectancy table based on mortality tables issued by the federal government and private industry; Requires lump sum settlements to be paid to a claimant within 15 days after the respondent receives the executed settlement order; and Otis, Coan & Peters, LLC Page 123 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Requires documents to be transmitted or served using identical means to all required recipients. The act also states that the provisions of Senate Bill 09-168, which bill is declared to be procedural in nature, applies to all workers' compensation claims, regardless of the date the claims were filed. APPROVED by Governor March 31, 2010, EFFECTIVE March 31, 2010 S.B. 10-178 Workers' compensation - health care providers - performance review programs. The act requires workers' compensation insurers to include quality and patient data in programs that evaluate health care providers' performance. The act also requires such programs to be based on objective data that is available to affected providers. The act provides due process for health care providers, including disclosure of the processes followed and the provider's rights, and an appeal process to challenge results and decisions relating to performance programs. APPROVED by Governor May 26, 2010, EFFECTIVE July 1, 2010 S.B. 10-187 Workers' compensation - health insurance plans excluded - calculating wages - recovery of costs - clarification of at the time of injury - permanent partial disability exclusions to offset receipt of certain federal benefits - rejection of modified employment offer - modification of specific permanent medical impairment injuries schedule - combined temporary disability and permanent partial disability payments adjusted - employee waiving right to pursue permanent total disability payments. The act makes the following changes to the "Workers' Compensation Act of Colorado" (Act): Excludes medicaid and other indigent health care programs from the purview of health insurance plans, the cost of which is factored into a calculation of wages under the Act; Adds a compensable cost under the Act by requiring a court to award all reasonable costs, not including attorney fees, to a claimant when medical maintenance benefits that have been recommended by an authorized treating physician but are unpaid and contested are either admitted fewer than 20 days before the date of the hearing or ordered after the application for hearing on the benefits is filed; Clarifies that the phrase "at the time of injury", with respect to calculation of a worker's average weekly wage, means the wages the worker was earning on the date of the worker's accident; Eliminates permanent partial disability from the types of disabilities for which payments must be reduced under the Act in order to offset benefits payable under the federal "Old-age, Survivors, and Disability Insurance Amendments of 1965" (federal act) and repeals the requirement that employees apply for benefits under the federal act upon request by the insurer or employer; Describes some circumstances under which a temporarily disabled employee's rejection of an offer of modified employment does not constitute employee responsibility for termination of employment; On the schedule of specific permanent medical impairment injuries, replaces loss of an eye by enucleation with loss of a tooth, and sets the compensation period for the loss of a tooth at 6 weeks; Effective January 1, 2011, requires the director of the division of workers' compensation (director) in the department of labor and employment to annually adjust, based on the annual adjustments to the computation of Otis, Coan & Peters, LLC Page 124 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 average weekly wages, the amount of compensation for combined temporary disability payments and permanent partial disability payments for injuries sustained on or after January 1, 2012; and Prohibits the director or an administrative law judge from conditioning a lump sum payment on the claimant's waiver of his or her right to pursue permanent total disability payments. APPROVED by Governor May 27, 2010, PORTIONS EFFECTIVE July 1, 2010, PORTIONS EFFECTIVE January 1, 2011 H.B. 10-1038 Workers' compensation - brochure to claimants - adjustment in appropriations. An employer or the employer's insurance carrier shall provide a brochure to a workers' compensation claimant, in a form developed by the director of the division of workers' compensation in the department of labor and employment. The brochure shall describe the entities the claimant may contact for information, the claimant's rights related to his or her medical treatment and rights to receive benefit payments, and the claims process. APPROVED by Governor May 26, 2010, EFFECTIVE May 26, 2010 H.B. 10-1076 Property tax work-off program participants - status - workers' compensation - unemployment insurance - workers' compensation coverage - self-insured entity. The act classifies a participant in a property tax work-off program (program) as an "employee" under the "Workers' Compensation Act of Colorado" and includes the services performed by such a participant as "employment" for purposes of the "Colorado Employment Security Act". The act also allows a governmental entity or private nonprofit or for-profit entity that has a contract with a governmental entity that is self-insured under the "Workers' Compensation Act of Colorado" to purchase workers' compensation insurance for a program participant. APPROVED by Governor April 28, 2010, EFFECTIVE August 11, 2010 H.B. 10-1108 Workers' compensation - youth sports coaches - independent contractor - evidenced in written contract. The act establishes that a written contract between a coach and a nonprofit youth sports organization, declaring that the coach is an independent contractor and not an employee of the organization, is conclusive evidence of the independent contractor relationship between the coach and the organization for purposes of workers' compensation laws. The written contract must contain a conspicuous declaration, acknowledged by the coach and organization, indicating that the coach is an independent contractor, is not entitled to workers' compensation benefits, and is obligated to pay income taxes on any moneys paid to the coach under the contract for services performed for the organization. For purposes of a civil action brought by a third party, the written agreement between a nonprofit youth sports organization and a coach is not conclusive evidence of an independent contractor relationship. APPROVED by Governor April 15, 2010, EFFECTIVE April 15, 2010 H.B. 10-1109 Workers' compensation - benefits - inmates participating in a federal Prison Industry Enhancement Certification Program - coverage method. As a condition of participating in the federal prison industry enhancement certification program (PIECP), federal law requires workers' compensation benefits to be made available to an inmate working in a PIECP-certified training, rehabilitation, or work release program. In order to comply with that requirement, the act clarifies that, for the purposes of state laws concerning workers' compensation, the term "employee" includes an inmate of a department of corrections facility or a city, county, or city Otis, Coan & Peters, LLC Page 125 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 and county jail who is working, performing services, or participating in a program that has been certified under the PIECP. For workers' compensation purposes, an inmate working in a PIECP-certified program is an employee of that program. The act also clarifies that workers' compensation benefits to which an inmate is entitled as a result of working in a program shall not be suspended for the period of time during which the inmate is incarcerated. The act requires PIECP-certified programs to carry workers' compensation insurance. In order to provide public entities with more insurance options for PIECP-certified programs, current law is amended to allow public entities to select any method of workers' compensation insurance for PIECP participants. APPROVED by Governor April 29, 2010, EFFECTIVE August 11, 2010 H.B. 10-1231 Conveyance regulation - administration - inspection - stairway chair lifts. Stairway chair lifts are exempted from regulation under the "Elevator and Escalator Certification Act" (act). The current law allowing contractors from other states to qualify for licensure if the contractor is licensed in a state with standards similar to Colorado's is repealed, which means a contractor from another state is required to comply with the same personnel and insurance requirements placed on Colorado contractors. New guidelines allow contractors to report dangerous conditions to approved local jurisdictions in addition to the department administrator (administrator). Newly installed or altered conveyances must be inspected before being put in use and subsequent periodic inspections are required. The administrator must promulgate rules exempting continued use of a private residence conveyance installed before 2008 in a building that is not a single-family residence. APPROVED by Governor April 5, 2010, EFFECTIVE August 11, 2010 H.B. 10-1417 Pay equity commission - creation - membership - duties - annual report - repeal. The bill establishes the pay equity commission (commission) within the Colorado department of labor and employment (department). The commission consists of 11 members, appointed within 90 days after the act becomes effective, as follows: The executive director of the department or his or her designee; The director of the civil rights division in the department of regulatory agencies or his or her designee; A member representing higher education who has expertise in pay equity issues, appointed by the governor; A member representing a statewide labor union federation and a member representing a national organization that serves minority communities, both appointed by the president of the senate; A member representing a women's national association or organization and a member who is an attorney with experience in labor and employment issues, is an active member of the bar association, and represents employees, both appointed by the speaker of the house of representatives; A member representing a business association, appointed by the minority leader of the senate; A member representing a chamber of commerce or consortium of chambers, appointed by the minority leader of the house of representatives; A member who is a private, for-profit employer with fewer than 15 employees, jointly appointed by the minority leaders of the senate and house of representatives; and A member who is a private, for-profit employer with at least 15 employees, jointly appointed by the president and minority leader of the senate and the speaker and minority leader of the house of representatives. Otis, Coan & Peters, LLC Page 126 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 The commission is to convene its first meeting by September 1, 2010, and is charged with the following tasks: Educating employers in the state about issues or practices that may contribute to pay inequities; Working with business groups and educational institutions to develop and maintain an inventory of best practices for encouraging equal pay; Encouraging employers to implement equal pay best practices; Studying other state models of equal pay practices that achieve pay equity; Developing a program recognizing employers who pursue pay equity practices; Conducting outreach and education to employees and employers regarding pay equity; and Working to establish Colorado as a model employer with regard to pay equity. The commission is required to submit annual reports to the executive director of the department, detailing the work it has done. The executive director is to present the commission's report to the business, labor, and technology committee of the senate, and the business affairs and labor committee of the house of representatives and, after such presentation, post the report on the department's web site. The commission may submit recommendations for policy or administrative changes, upon approval of 2/3 of its members, and any such recommendations shall be included in the commission's annual reports. The commission is subject to sunset review, with the repeal of the commission set for July 1, 2015. APPROVED by Governor May 25, 2010, EFFECTIVE May 25, 2010 16. MOTOR VEHICLES AND TRAFFIC REGULATION S.B. 10-15 Driver's licenses - minors - driver training. The age at which a minor is required to obtain behind-the-wheel training to obtain a driver's license is changed from 18 to 16 and 6 months. APPROVED by Governor March 31, 2010, EFFECTIVE August 11, 2010 S.B. 10-110 Child restraint systems - age and height requirements - parental responsibility - primary offense - warning for the first year. The act modifies the age and height requirements for certain children who are otherwise required to be fastened in a child restraint system. A child is who is less than 8 years of age must be restrained in an appropriate child restraint system pursuant to the manufacturer's instructions. If the child is less than 1 year of age and weighs less than 20 pounds, the child must be restrained in a child restraint system in the rear seat of the vehicle. A child who is at least 8 years of age but less than 16 years of age must be properly restrained in either a child restraint system pursuant to the manufacturer's instructions or a seat belt. It is a parent's responsibility to ensure that the child is properly restrained unless no parent is in the car, then it is the driver's responsibility. A violation of the child restraint system section is a primary offense. For the first year that the provision is in effect, a peace officer may only give a violator a warning. APPROVED by Governor May 26, 2010, EFFECTIVE August 1, 2010 H.B. 10-1019 Disabled parking - administration and enforcement. The act creates a cash fund that receives fine moneys and may accept donations, and requires the fund to be used to implement the reserved parking program for the disabled. A disabled parking education program is created. The act changes the administration of reserved parking for the disabled with the following: Requires identification to obtain a license plate or placard; Requires the placard to bear a visible expiration date and the last 4 digits of a person's identification number; Otis, Coan & Peters, LLC Page 127 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Subjects the holder of a permanent disability license plate or placard to reverification of the disability every 3 years; Changes the application to contain an eligibility notice and penalties for obtaining a license plate or placard when not eligible; Creates a form that a professional signs, under penalty of perjury, when verifying a disability; When renewing a license plate, requires a statement, under penalty of perjury, that the person is eligible to use a reserved parking plate; Allows the department to require another professional to verify a disability upon a complaint or finding reasonable suspicion that a person is not entitled to use reserved parking privileges; Requires the department to give peace officers electronic access to disabled parking records; and Limits the validity of placards from another jurisdiction to 90 days after moving to Colorado. In addition, the act changes the laws governing enforcement of the reserved parking program for the disabled in the following ways: Prohibits imposing restrictions on the use of reserved parking unless specifically authorized by law and notice is posted; Requires wheelchair unloading areas to be marked with a sign; Increases the fine for misuse of reserved parking from $100 or $200 to $350 for the first offense, $600 and community service for a second offense, and $1,000 for subsequent offenses, and doubles those fines for commercial carriers; Authorizes a peace officer to confiscate a placard that is being misused; Prohibits creating a device that mimics a placard; Prohibits retaliation against an employee for notifying the authorities of a violation of a possible reserved parking violation; Authorizes a peace officer or property owner to remove a vehicle that is violating the reserved parking provisions; Prohibits moving a vehicle to avoid time limits on reserved parking spaces; Prohibits using reserved parking for commercial purposes unrelated to transacting business with the person the space is intended to serve. In the use of a parking space such as a parking lot or parking meter, the act prohibits taking adverse action against a person with a disability if the method of payment is not reasonably accessible.. APPROVED by Governor June 10, 2010, EFFECTIVE January 1, 2011 H.B. 10-1172 Registration - special mobile machinery - appropriation. The act makes stylistic changes to clarify the definition and registration requirements of special mobile machinery and modifies the registration and taxation of special mobile machinery by: Deeming farm equipment meeting the definition of special mobile machinery to be Class F personal property if the equipment is used for a purpose other than agricultural production for the time it was used for the other purposes; Prohibiting the use of a prorated registration sticker on special mobile machinery unless the machinery is registered; Prohibiting the operation of such machinery unless it is registered, and grants Otis, Coan & Peters, LLC Page 128 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 a credit for taxes paid to the owner who converts a vehicle to special mobile machinery; Creating and setting the requirement for a demonstration plate to be used by people who sell special mobile machinery; Requiring a person who sells special mobile machinery to notify the buyer that the owner should register the machinery; and Authorizing owners to obtain a temporary registration similar to the temporary registration for motor vehicles. APPROVED by Governor May 27, 2010, EFFECTIVE October 1, 2010 H.B. 10-1340 Abandoned vehicles - law enforcement - notices. Currently, the statutes governing the towing of vehicles on public property require that both the law enforcement agency and the tow operator send a notice of the tow by certified mail to the owner or lienholder of a towed vehicle. If a law enforcement agency uses a tow operator, the act requires the law enforcement agency to send a notice by first-class mail. APPROVED by Governor May 5, 2010, EFFECTIVE May 5, 2010 17. PROBATE, TRUSTS, AND FIDUCIARIES S.B. 10-199 Colorado probate code - designated beneficiary agreements. The revisor of statutes will include in the publication of the "Colorado Probate Code" as nonstatutory matter, following each amended or added section, the full text of the official comments to that section contained in the 2008 official text of "Amendments to Uniform Probate Code" issued by the national conference of commissioners on uniform state laws, with any changes in the official comments or Colorado comments to correspond to Colorado changes in the uniform probate code. Cost-of-living adjustments of certain dollar amounts will be rounded to one-thousand-dollar increments, rather than one-hundred-dollar increments, for purposes of the Colorado probate code. A "will" does not include a designated beneficiary agreement for purposes of the Colorado probate code. The act removes statutory language awarding part or all of an intestate estate to a designated beneficiary who was designated by the decedent to be his or her designated beneficiary for purposes of intestate succession and adds new statutory language concerning the rights of a designated beneficiary to receive all or part of an intestate estate. The act removes statutory language awarding a share of an intestate estate for a decedent's stepchildren when there are no blood relatives of the decedent available to receive an intestate share. A child who is in the process of being adopted by a second adult in a second-parent adoption when the second adult dies will be treated as adopted by the second adult if the child's parent survives the second adult by 120 hours. The act reduces the degree of evidence required to overcome a presumption that a deceased spouse has a parent-child relationship with a child born using assisted reproduction technologies. The act revises the scope of the rules of construction applicable to wills and other governing instruments to specify that new class gift rules apply only to documents executed or re-published on or after the effective date of the applicable statute. Terms of relationship in a governing instrument that do not differentiate relationships by blood from those by marriage, such as uncles, aunts, nieces, or nephews, are construed to exclude relatives by marriage. A personal representative is protected from potential surcharges and liability as a result of the personal representative making distributions of assets without knowledge that an individual intends or may intend to use a decedent's genetic material to create a child and that the birth of such a child would affect the asset distribution formula. The statutory form of a designated beneficiary agreement is amended with language indicating that the agreement is intended to grant all of the rights and protections listed in Otis, Coan & Peters, LLC Page 129 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 the form unless the parties withhold a right or protection in a prescribed manner. The act amends the effective date-applicability clause of House Bill 09-1287, enacted in 2009. APPROVED by Governor June 7, 2010, EFFECTIVE July 1, 2010 H.B. 10-1024 Declaration as to medical or surgical treatment - terminal illness. The ability to declare a patient terminally ill for purposes of triggering end-of-life decisions is left to the sole discretion of a physician. The act shall not take effect if House Bill 10-1025 is enacted and becomes law. APPROVED by Governor April 15, 2010, EFFECTIVE August 11, 2010 NOTE: House Bill 10-1025 was signed by the governor April 15, 2010. H.B. 10-1025 Future medical treatment - Colorado medical treatment decision act. The act repeals and reenacts, with amendments, the "Colorado Medical Treatment Decision Act". The term "lacking decisional capacity" replaces "incompetent", and a new term, "persistent vegetative state", is added to clarify different medical conditions under which the act shall be applied. The options available to the patient when he or she is in a terminal condition or persistent vegetative state and lacking decisional capacity are clarified. The act removes from statute the legal form that the declaration as to medical or surgical treatment may take and makes further clarifications concerning the declaration. Any declaration executed in compliance with Colorado law at the time it was made shall continue to be an effective declaration, and any declaration executed in compliance with the laws of another state shall be considered effective in Colorado, so long as the declaration does not violate any Colorado law. APPROVED by Governor April 15, 2010, EFFECTIVE August 11, 2010 H.B. 10-1122 Declarations for future medical treatment - directives concerning medical orders for scope of treatment. A medical orders for scope of treatment form (MOST form) that is properly executed and signed by an adult's physician, advanced practice nurse, or, if under the supervision or authority of the physician, physician's assistant shall have the same force and effect as a physician's order with respect to medical treatment of the adult who is the subject of the MOST form. An adult with decisional capacity or an authorized decision-maker for an adult who lacks decisional capacity may execute a MOST form. Emergency medical service personnel, a health care provider, or a health care facility must comply with a MOST form that is apparent and immediately available. Emergency medical service personnel, a health care provider, or a health care facility that complies with a MOST form is exempt from civil or criminal liability or regulatory sanction. A verbal order from an adult's physician, advanced practice nurse, or, if under the supervision or authority of the physician, physician's assistant shall have the same force and effect as an executed MOST form so long as the verbal order is acknowledged in writing and signed by the adult's physician, advanced practice nurse, or, if under the supervision or authority of the physician, physician's assistant. A health care provider may revise the provisions of an adult's executed MOST form only if: (1) The adult's medical condition has changed since the execution of the form or the provisions of the form are not, in the provider's independent medical judgment, medically appropriate; (2) the provider consults with the adult or, if the adult lacks decisional capacity, the adult's surrogate decision-maker concerning the revision of the form; and (3) the adult or, if the adult lacks decisional capacity, the adult's authorized surrogate decision-maker consents to the revision of the provisions of the form. If a health care provider revises an adult's executed MOST form, the provider shall record the revisions on the form and the provider and the adult or, if the adult lacks decisional capacity, the adult's authorized surrogate decision-maker shall sign and date the form. A health care facility or health care provider that transfers an adult who is known to have properly executed and signed a MOST form must communicate the existence of the form to the receiving health care facility or health care provider before the transfer and ensure that the form or a copy of the form accompanies the adult upon Otis, Coan & Peters, LLC Page 130 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 admission to or discharge from a health care facility. A health care provider or health care facility that provides care to an adult whom the health care provider or health care facility knows to have executed a MOST form must provide notice to the adult or, if appropriate, to the adult's authorized surrogate decision-maker, of any policies based on moral convictions or religious beliefs of the health care provider or health care facility relative to the withholding or withdrawal of medical treatment. A health care provider or health care facility must promptly transfer an adult who has executed a MOST form to another health care provider or health care facility if the original health care provider or health care facility will not comply with the provisions of the form on the basis of policies based on moral convictions or religious beliefs. An adult with decisional capacity may revoke all or part of his or her executed MOST form at any time. An authorized surrogate decision-maker may revoke an adult's MOST form. Emergency medical service personnel, a health care provider, or an authorized surrogate decision-maker who becomes aware of the revocation of a MOST form must promptly communicate the fact of the revocation to a physician, advanced practice nurse, or physician's assistant who is providing health care to the adult who is the subject of the form. A health care facility may not require an adult to complete a MOST form as a condition of being admitted to, or receiving treatment from, the health care facility. Neither the existence nor absence of a MOST form shall be the basis for any delay in issuing or refusing to issue an annuity or policy of life or health insurance or any increase of a premium therefor. The act clarifies the effect of a MOST form on conflicting provisions of another form of advance medical directive. APPROVED by Governor May 26, 2010, EFFECTIVE August 11, 2010 18. PROFESSIONS AND OCCUPATIONS S.B. 10-83 Alcohol beverage sales - limitation on extension of credit - rules for alcohol content testing of beer. The act requires the state licensing authority to enforce the prohibition under federal regulations against the extension of credit for more than 30 days. Further, the act prohibits the state licensing authority from adopting any rule regulating or prohibiting the sale of alcohol beverages on credit offered or extended to a licensed retailer where the credit is offered for 30 or fewer days, but allows the adoption of rules regarding the sale of alcohol beverages on credit for more than 30 days, consistent with applicable federal regulations. The act also clarifies that the state licensing authority cannot adopt rules restricting sales of alcohol beverages on a cash-on-delivery basis to a retailer who is or may be in arrears on prior alcohol beverage sales. Licensees are obligated to comply with the credit sales prohibition and with any rules adopted by the state licensing authority. For purposes of the prohibition on credit sales of alcohol beverages, "licensee" includes, consistent with federal regulations, a person in business as a distiller, brewer, rectifier, blender, or other producer; as an importer or wholesaler of alcohol beverages; or as a bottler or warehouseman and bottler of spirituous liquors. The act also specifies that the extension of credit beyond 30 days or in a manner inconsistent with rules of the state licensing authority constitutes unlawful financial assistance under the "Colorado Liquor Code". The act requires the state licensing authority to adopt rules by January 1, 2011, regarding alcohol content testing of malt liquor and fermented malt beverages sold by persons licensed under the "Colorado Beer Code" or the "Colorado Liquor Code". APPROVED by Governor April 15, 2010, EFFECTIVE August 11, 2010 S.B. 10-124 Michael Skolnik Medical Transparency Act of 2010 - reporting by additional health care professionals - modifications to reporting requirements - awards and recognitions permitted. Otis, Coan & Peters, LLC Page 131 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Pursuant to the "Michael Skolnik Medical Transparency Act", enacted in 2007, physicians licensed in Colorado are required to report information pertaining to their practice history, including the following: The physician's name, address, and telephone number; Information pertaining to any license to practice medicine held by the physician at any time; Any board certifications and specialties;! Any affiliations with hospitals or health care facilities; Any health care-related business ownership interests or employment contracts if the aggregate value of the contracts exceeds $5,000 annually; Any public disciplinary action taken by the state board or the regulatory body of another state or country; Any agreement or stipulation to temporarily cease or restrict practice or any board order restricting or suspending the physician's license; Any final action resulting in an involuntary limitation or probationary status on, or reduction, nonrenewal, denial, revocation, or suspension of, the physician's medical staff membership or clinical privileges at a hospital or health care facility on or after September 1, 1990; Any involuntary surrender of the physician's United States drug enforcement administration registration; Any final criminal conviction or plea arrangement relating to the commission or alleged commission of a felony or crime of moral turpitude; Any final judgment, settlement, or arbitration award in a medical malpractice claim; and The refusal of an insurance carrier to issue a medical malpractice insurance policy to the physician due to past claims experience. Under the "Michael Skolnik Medical Transparency Act of 2010", similar reporting requirements are extended, as applicable, to the following health care professionals who apply for a new license, certification, or registration or to renew, reinstate, or reactivate a license, certification, or registration on or after July 1, 2011: Audiologists and licensed hearing aid providers; Acupuncturists; Podiatrists; Chiropractors; Dentists and dental hygienists; Physician assistants; Direct-entry midwives; Practical nurses, professional nurses, and advanced practice nurses; Optometrists; Physical therapists; and Psychologists, social workers, marriage and family therapists, professional counselors, addiction counselors, and unlicensed psychotherapists. The reporting requirements, as enacted in the original "Michael Skolnik Medical Transparency Act" of 2007, are modified to require all impacted professionals, including physicians, to: Report the location of the applicant's practice if different than the applicant's address of record; Report information about the education and training the person received pertaining to his or her profession; Report information pertaining to the applicant's employer, if any; Provide information about other licenses, certifications, or registrations to practice the applicant's profession that were issued in the previous 10 years, rather than those issued at any time in the person's career; Report any final action by an employer that results in the applicant's loss of employment if the grounds for termination constitute a violation of the laws regulating the applicant's profession; and Comply with their responsibility to report adverse actions to the appropriate regulatory body as otherwise required by law. The requirement to report the license number, type, original issue date, last renewal date, and expiration date of any other license, certification, or registration issued to the person is eliminated. In addition to the information required to be reported, an impacted professional is also permitted to submit information pertaining to relevant awards and recognitions received by the person or charity care provided by the person. APPROVED by Governor June 10, 2010, EFFECTIVE August 11, 2010 S.B. 10-176 Advanced practice nurse registry - requirements for inclusion. Under current law, a professional nurse with an identified specialty area may apply for inclusion in the advanced practice nurse registry as a professional nurse who has obtained specialized education or training. The act updates terminology in the law to refer to a professional nurse's "role and population focus" rather than "specialty area", and allows the state board of nursing to determine the appropriate graduate degrees a professional nurse must successfully complete in order to qualify for inclusion on the registry. Additionally, a professional nurse may be included on the registry by endorsement if he or she: Is recognized as an advanced practice nurse in another state or jurisdiction Otis, Coan & Peters, LLC Page 132 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 and has practiced as an advanced practice nurse for at least 2 of the last 5 years; or Holds a national certification in the appropriate role and population focus and possesses an appropriate graduate degree. APPROVED by Governor April 29, 2010, EFFECTIVE April 29, 2010 S.B. 10-201 Motor vehicle - manufacturer - regulation - violation - penalties. House Bill 10-1049 created a right of first refusal when a motor vehicle manufacturer terminates a motor vehicle dealer's franchise and within 5 years offers the same franchise within 5 miles of the original franchise. The act imposes a civil fine of $10,000 to $25,000 on a motor vehicle manufacturer or distributor for failing to offer the right of first refusal or make a compensation payment required under the right of first refusal. The remedies for such failure are expanded to include costs of the action that a person licensed under the motor vehicle dealer statutes may recover from a manufacturer or distributor. The act clarifies that a license may be denied, suspended, or revoked for willfully failing to offer the right of first refusal or make a compensation payment required under the right of first refusal. APPROVED by Governor June 10, 2010, EFFECTIVE June 10, 2010 H.B. 10-1085 Land surveying - qualifications for licensure - surveyor's affidavit of correction. Effective January 1, 2011, the act adds a set of qualifications under which a person applying for licensure as a professional land surveyor (applicant) by education, experience, and examination may qualify to take the licensure examination. The act also requires the state board of licensure for architects, professional engineers, and professional land surveyors to specify in rule the surveying course work required for such applicants. The act repeals, effective July 1, 2020, the ability for an applicant to qualify for the examination by experience and education. The act identifies a surveyor's affidavit of correction, which may be used to make certain minor technical corrections to recorded survey plats or parcel descriptions, and describes the procedure for the creation of a surveyor's affidavit of correction. The act requires a surveyor's affidavit of correction to be prepared instead of a correction plat when a technical error in a plat meets the criteria under which a surveyor's affidavit of correction is required. The act updates current provisions relating to affidavits that may affect titles of real property and requires court orders that establish corners or boundaries of disputed land boundaries to be filed in the grantor-grantee index of the county or counties in which the land lies. APPROVED by Governor April 15, 2010, PORTIONS EFFECTIVE April 15, 2010, PORTIONS EFFECTIVE January 1, 2011 H.B. 10-1114 Money transmitters - agents - regulation - appropriation. The act authorizes the banking board to share information about money transmitters with the United States attorney general. In addition, the act imposes regulations on money transmitter agents, which include the following: - Requiring the agent to provide the banking board certain business information, which may be shared with law enforcement; - Requiring the agent and the agent's employees to sign a statement containing a notice of the money laundering laws or to receive training in the money laundering laws, and the agent is required to keep a record that is open to inspection by law enforcement; - Prohibits a money transmitter from employing an agent who has committed certain crimes related to banking or property; - Prohibits an agent from employing a person who has committed certain crimes related to banking or property; - Imposes a class 2 misdemeanor for a violation and a class 1 misdemeanor for subsequent violations; Otis, Coan & Peters, LLC Page 133 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 - Punishes a person who acts as an agent of an unlicensed money transmitter with a class 2 misdemeanor. APPROVED by Governor May 5, 2010, EFFECTIVE July 1, 2010 H.B. 10-1128 Division of registrations - supervision of regulated professionals - efficiency measures. This act makes the "Colorado Licensing of Controlled Substances Act" and the sunset law consistent with provisions enacted in Senate Bill 09-128, enacted in 2009, that continued the regulation of administration of medication by unlicensed persons. The act clarifies that moneys collected on behalf of administering entities of professional peer review programs do not constitute "state fiscal year spending" for purposes of section 20 of article X of the state constitution. The act clarifies the exemptions to the dental practice act by providing that dental students and residents practicing dentistry while in dental school are exempt from the dental practice act. The exemption for foreign-trained dentists teaching at a dental school because such dentists were granted dental license options in legislation enacted in 2009 was deleted. The act repeals duplicate regulatory requirements in the "Colorado Medical Practice Act" for the inspection of X-ray equipment and standards for persons using the equipment, thereby allowing the department of public health and environment rules to govern these activities for physicians. The director of the division of registrations is authorized to take disciplinary action under the "Massage Therapy Practice Act" against persons convicted of unlawful sexual behavior or prostitution-related offenses. The act deletes special license requirements for out-of-state chiropractors and medical doctors to obtain special temporary licenses to practice at United States Olympic committee-sanctioned events and replaces those requirements with an exemption allowing this type of temporary professional practice for no more than 90 days per calendar year. Special license requirements for out-of-state medical doctors to evaluate children as patients of Shriners hospitals for children are repealed and replaced with an exemption allowing this type of temporary professional practice for not more than 90 days per calendar year. The act repeals the regulatory functions of the division of registrations with respect to athlete agents. APPROVED by Governor April 29, 2010, EFFECTIVE April 29, 2010 H.B. 10-1141 Real estate - mortgage companies - registration required - board of mortgage loan originators - creation - powers and duties - continuation under sunset law - appropriation. Mortgage companies are required to register with and be regulated by the division of real estate under the "Mortgage Loan Originator Licensing and Mortgage Company Registration Act". The board of mortgage loan originators is created in the division of real estate. The powers, duties, and functions of the board are set forth, and the powers, duties, and functions of the division of real estate and its director are clarified as part of the department of regulatory agencies. Standards are set for mortgage companies to be registered, including that they be registered on the nationwide mortgage licensing system and registry created pursuant to the federal "Secure and Fair Enforcement for Mortgage Licensing Act of 2008". Grounds for disciplinary action against mortgage companies are specified. The scheduled sunset date for this regulatory program is delayed from July 1, 2011, to July 1, 2013, pursuant to the provisions of the sunset law. APPROVED by Governor May 26, 2010, EFFECTIVE August 11, 2010 Otis, Coan & Peters, LLC Page 134 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 H.B. 10-1148 Architects - continuing professional competency requirement - repeal - appropriation. The act repeals the continuing professional competency requirement for an architect to maintain his or her license to practice architecture in the state. APPROVED by Governor April 5, 2010, EFFECTIVE August 11, 2010 H.B. 10-1175 Licensure, certification, and registration by endorsement - demonstration of continued competency as an alternative to work or practice. For occupations and professions regulated by the department of regulatory agencies (department) that require a period of work or practice in the regulated occupation or profession prior to the issuance of a certification, registration, or license by endorsement, the act allows an applicant to demonstrate competency in his or her particular field as determined by the director of the division of registrations or the applicable regulatory board. The act specifically allows the demonstration of competency for chiropractors, dentists, dental hygienists, optometrists, nursing home administrators, and physical therapists. APPROVED by Governor March 29, 2010, EFFECTIVE July 1, 2011 H.B. 10-1204 Plumbing - code - conservation requirement. The act requires the plumbing code adopted by the examining board of plumbers in the department of regulatory agencies to include a standard for conservation, defined as efficiency measures that meet national guidelines and standards and are tested and approved by a nationally recognized testing laboratory, including water-efficient devices and fixtures and the use of locally produced materials when practicable. APPROVED by Governor April 5, 2010, EFFECTIVE August 11, 2010 H.B. 10-1222 Collection agencies - local office requirement - notice. The act continues indefinitely the requirement that a collection agency maintain an office in Colorado, adding the requirements that the office accept a payment and the collection agency notify consumers of the office's phone number and address. APPROVED by Governor May 6, 2010, EFFECTIVE July 1, 2010 H.B. 10-1224 Podiatrists - continuation of regulation - expansion of practice - liability insurance - licensure qualification - creation of volunteer and training licenses - repeal - appropriation. The act extends the Colorado board (board) of podiatry until July 1, 2019. It also amends the definition of the "practice of podiatry" to clarify that podiatrists may treat the soft tissue below the midcalf. A podiatrist licensed after July 1, 2010, may perform ankle surgery without certification by the American board of podiatric surgery if he or she has completed a 3-year residency program or is certified in reconstructive rearfoot/ankle surgery or foot and ankle surgery by the American board of podiatric surgery. A podiatrist licensed after July 1, 2010, who is supervising a licensed podiatrist who does not have the certification must have the rearfoot/ankle surgery or foot and ankle certification. The required minimum levels of liability insurance for podiatrists who perform surgical procedures are increased from $500,000 per claim to $1,000,000 per claim and from $1,500,000 per year for all claims to $3,000,000 per year for all claims. The act also requires a podiatry training license for persons in an approved podiatry residency program. The act prohibits the public member of the board from being a licensed health care professional or from being employed in or benefitting financially from the health care industry. It also repeals the office of secretary from the board and updates the operation of the board to reflect current practice. Licensure qualifications are amended to require the completion of one year of an approved residency program and to allow the board to promulgate rules to define an Otis, Coan & Peters, LLC Page 135 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 approved residency. An applicant for initial licensure is required to demonstrate that, during the 2 years immediately preceding the date the application is received by the board, he or she was enrolled in a medical school or residency program, passed the national examination, was engaged in the active practice of podiatry, or can otherwise demonstrate competency. Fees are no longer statutorily specified for the podiatry examination and the administration of the examination by the board. The definition of "unprofessional conduct" is clarified regarding the excessive use or abuse of alcohol or controlled substances. A 30-day period in which a licensee shall report to the board any adverse actions taken against the licensee and the failure to respond to a complaint made to the board are added to the definition of "unprofessional conduct". A volunteer podiatrist license is added as an alternative to the regular license for those who no longer earn income from the practice of podiatry, and a podiatry training license is also created for persons in a podiatry residency program in Colorado. An applicant for licensure by endorsement is required to demonstrate that, in the previous 2 years, he or she has been actively engaged in the practice of podiatry or otherwise demonstrates competency. The board is authorized to impose a fine of not more than $5,000 for a violation of the practice act. The time period for a podiatrist who is the subject of a complaint to respond is changed from 20 to 30 days. The board is also authorized to suspend the license of a podiatrist for the failure to comply with a condition imposed by the board. The existing exemption to the practice act for surgeons commissioned to serve in the United States Army, Navy, or Marines is broadened to cover the United States armed forces. The role of the physician assistant issuing prescription drugs under the supervision of a podiatrist is clarified. APPROVED by Governor June 10, 2010, EFFECTIVE July 1, 2010 H.B. 10-1225 Electricians - state electrical board - administration - continuation under the provisions sunset law. The act implements the recommendations of the department of regulatory agencies in its sunset review of the functions of the state electrical board (board), which include the following recommendations: - Continues the board until 2019; - Confers enforcement authority on the board concerning local governmental compliance with the state electrical code. Current law allows work to continue if the inspection is not performed within 5 days after a request, the act repeals that authorization for work to continue without an inspection; - Authorizes the board to suspend the license of, issue a letter of admonition to, place on probation, or issue a citation to a contractor's designated master electrician; - Repeals authorization for a homeowner to alter electrical work without having a license; - Allows the board to meet annually rather than monthly; - Replaces one of the board seats allotted to a utility with a lay representative of the public; - Prohibits a person from using the title of master electrician, journeyman electrician, or residential wireman without a license; and - Replaces the size and valuation criteria for setting fees with an actual cost of inspection criteria set administratively. In addition, state and local inspectors are authorized to enforce any provision of the statutes concerning the regulation of electricians or electrical work. Administrative procedures for discipline are also clarified. APPROVED by Governor May 5, 2010, EFFECTIVE July 1, 2010 H.B. 10-1236 Accountants - administration - discipline - education - title protection. The act implements the recommendations of the department of regulatory agencies in its sunset review of the functions of the state board of accountancy, which include the following recommendations: Otis, Coan & Peters, LLC Page 136 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Recommendation 1 continues the state board of accountancy (board) and the regulation of certified public accountants and firms until 2019. Recommendation 2 requires 150 hours of education for a certified public accountant (CPA) to be licensed after June 30, 2015. Current law allows a CPA candidate to substitute additional education for a year of experience working for a CPA. Recommendation 3 repeals the additional education allowance in lieu of experience pathway to obtain a license. Recommendation 4 expands the scope of acceptable experience required for licensure as a CPA. Recommendation 5 clarifies that any disciplinary action taken by another state, foreign, or federal agency may serve as grounds for discipline by the board. Recommendation 6 clarifies that disciplinary actions taken by the public company accounting oversight board, created by the federal "Sarbanes-Oxley Act of 2002", may serve as grounds for discipline by the board. Recommendation 7 expands the board's disciplinary authority over registered firms to include the denial of or refusal to renew a registration, imposition of a fine, issuance of a letter of admonition, or placing the registrant on probation. Recommendation 8 increases the board's fining authority from $1,000 to $5,000 against licensed CPAs and adds the authority to fine registrants up to $10,000. Recommendation 9 repeals the board's authority to issue a censure. Recommendation 10 clarifies the requirements for using the titles "certified public accountant", "C.P.A.", "certified public accountants", or "C.P.A.s" in its name. It also specifies additional title protection requirements. Recommendation 11 clarifies that a candidate for licensure must pass the uniform CPA examination, in addition to other requirements. In addition, the act requires a firm or individual that practices certified public accounting to comply with a peer review process created by the state board of accountancy. APPROVED by Governor April 21, 2010, EFFECTIVE July 1, 2010 H.B. 10-1241 Sprinkler fitters - installation of fire suppression systems - registration required - sprinkler fitter apprentice program - appropriation. The act prohibits a person from acting or advertising as a sprinkler fitter unless the person has registered with the state fire suppression administrator. In order to register, a person shall pay a fee and demonstrate that he or she has successfully completed a sprinkler fitter apprenticeship program, complete an application for reciprocity, perform at least 8,000 hours of documented practical work experience on fire suppression systems, or otherwise demonstrate competency as a sprinkler fitter as determined by the administrator. The act defines a sprinkler fitter to include a person who installs fire suppression systems and to exclude persons who perform maintenance and repair on fire suppression systems as a part of their employment, who perform work exclusively on cross-connection control devices, who work on their own homes, and who perform work exclusively on an underground system. Sprinkler fitters must complete continuing education, annually renew their registration, and complete a revised examination in the years that the fire and building codes are revised.the act appropriates $15,000 from the fire suppression cash fund to the department of public safety, office of preparedness, security, Otis, Coan & Peters, LLC Page 137 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 and fire safety for the implementation of the act. APPROVED by Governor June 7, 2010, EFFECTIVE July 1, 2011 H.B. 10-1244 Physicians - professional service corporations - heir of deceased shareholder - right to become a shareholder. The act allows an heir of a person licensed to practice medicine who is a shareholder in a professional service corporation to become a shareholder of the corporation for up to 2 years if the physician shareholder dies, regardless of whether the heir has a license to practice medicine. The act specifies that when the heir ceases to be a shareholder, provision is made for the shares to be reacquired by the corporation or by a person actively practicing medicine in the offices of the corporation. The act makes the heir a nonvoting shareholder unless the deceased shareholder was the only shareholder of the corporation. APPROVED by Governor May 10, 2010, EFFECTIVE August 11, 2010 H.B. 10-1260 Board of medical examiners - continuation and renaming of Colorado medical board - regulation of EMTs - medical board membership, duties, and powers - licenses issued by medical board. The act implements the recommendations of the department of regulatory agencies in its sunset review of the Colorado state board of medical examiners by amending the "Colorado Medical Practice Act" in numerous respects. The Colorado state board of medical examiners and its functions are continued for 9 years, until July 1, 2019. The board is renamed the "Colorado medical board" (medical board). The system of professional review committees that review and evaluate the quality and appropriateness of patient care provided by licensed physicians in this state, which is not currently reviewed through the sunset review process, is scheduled for a sunset review and repeal on July 1, 2012. The functions of the medical board regarding the regulation of emergency medical technicians (EMTs) are modified to: Transfer regulatory authority pertaining to the duties and functions of (EMTs) from the medical board to a newly created advisory council within the Colorado department of public health and environment (department), effective January 1, 2011; Create the emergency medical practice advisory council (advisory council) to advise the department regarding the appropriate scope of practice for EMTs and make recommendations to the executive director of the department or the chief medical officer, as appropriate, regarding the adoption of rules for the regulation of EMTs and their duties and functions; Set forth the membership of the advisory council, with 8 voting members appointed by the governor, including physician emergency medical service medical directors from rural and urban counties; EMTs certified at advanced life support and basic life support levels; one voting member appointed by the executive director who serves on the state emergency medical and trauma services advisory council; and 2 ex officio members appointed by the executive director; Clarify that the rendering of services by certified EMTs that are consistent with EMT functions and duties, as defined by rules adopted by the executive director or chief medical officer, with advice from the advisory council, does not constitute the practice of medicine; The structure and functions of the medical board are modified to: Eliminate the 5-year residency requirement for prospective members of the medical board; Otis, Coan & Peters, LLC Page 138 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Repeal the statutory requirement that the governor, when making appointments to the medical board, consult with professional associations for physicians and osteopathic physicians; Eliminate the notice and hearing requirement when the governor removes a member of the medical board; Repeal the office of the secretary on the medical board; Increase the size of the medical board by 3 members; Add a licensed physician assistant to the medical board; Create a licensing panel within the medical board to address issues pertaining to the licensing of physicians and the unlicensed practice of medicine; Repeal outdated provisions regarding the procedures and duties of the medical board; Protect from subpoena, discovery, and admissibility in court the records of the medical board related to a complaint filed against a physician or physician assistant; Clarify that the director of the division of registrations has a continuing obligation and authority to ensure that the rules of the medical board and the state board of nursing pertaining to the prescriptive authority of advanced practice nurses and collaboration with physicians are and remain complementary. The provisions pertaining to the types of licenses issued by the medical board and the eligibility or need for a particular type of license are modified to: Repeal the existing limited license that is available only to physicians providing pro bono services to pediatric patients of Shriners hospital and replace the limited license with a broader pro bono license that would allow physicians, who are either licensed in Colorado but ceasing their regular practice or are licensed in another jurisdiction, to provide medical services in this state free of charge. A physician seeking a pro bono license is required to provide the medical board with proof of qualifications, and the physician is subject to regulatory oversight by the medical board. Additionally, a physician practicing under a pro bono license still needs to maintain professional liability coverage. Create a new type of license, referred to as a "reentry license", for physicians and physician assistants who have not actively engaged in their respective practices for 2 years or have not maintained continued competency during that period. The reentry license allows a physician or physician assistant to engage in the practice after an assessment of his or her competency and areas of needed improvement, participation in an educational program specifically geared to that person's needs, and supervision of his or her practice, as necessary. Streamline the process for issuing a license by endorsement to a physician who holds a current, valid license from another jurisdiction by allowing the medical board to rely on the verification of the applicant that he or she has actively practiced medicine in the other jurisdiction for 5 of the last 7 years or has otherwise maintained competency and the submission of proof satisfactory to the medical board that the applicant has not been subject to final or pending disciplinary action in another jurisdiction. Otis, Coan & Peters, LLC Page 139 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Impose a 2-year waiting period for application for a license to practice medicine or as a physician assistant for a physician, physician assistant, or other health care professional whose license has been revoked or who has surrendered his or her license to avoid discipline. Create a separate and distinct license for physician assistants while maintaining the same qualifications and licensing requirements for physician assistants. Relocate provisions concerning distinguished foreign teaching physician licenses and temporary licenses to separate and distinct sections in the "Colorado Medical Practice Act". The medical board is authorized to annually adjust the fee that is assessed upon physician and physician assistant license and renewal applicants and used to fund the physicians' and physician assistants' peer health assistance program to reflect not only the rate of inflation, but also the overall utilization of the program. The board is further authorized to assess different fee amounts to physicians and physician assistants based on the program utilization rates by practice type. The "Colorado Medical Practice Act" is updated to: Eliminate from the definition of "practice of medicine" the requirement that the physician be compensated; Move the definition of "telemedicine" to a new statutory definitions section created in the act; Clarify the conditions under which a physician licensed in another state may engage in the occasional practice of medicine in Colorado without first obtaining a Colorado license; Allow a physician lawfully practicing in another state or territory to provide medical services to athletes of team personnel registered to train at, or at an event sanctioned by, the United States olympic training center without having to obtain a Colorado license; Allow physicians to supervise up to 4 physician assistants, rather than 2; Eliminate the requirement that a physician supervising a physician assistant in an acute care hospital setting review the medical services rendered by the physician assistant, as reflected in the medical records, every 2 working days; Create a new definition section in the act to which defined terms throughout the act are relocated. With regard to the medical board's authority to supervise and discipline licensees, the "Colorado Medical Practice Act" is amended to: Allow a physician or physician assistant who suffers from a physical or mental illness or disability that limits his or her ability to practice to enter into a confidential agreement with the medical board whereby the licensee agrees to limit his or her practice in a manner consistent with the limitations of the disability. The licensee is obligated to inform the medical board when he or she suffers from such an illness or disability, and failure to so inform the board, to act within his or her limitations based on the illness or disability, or to comply with the terms of the confidential agreement constitutes unprofessional conduct subject to discipline by the medical board. Require a licensee to report to the medical board any adverse action taken against him or her within 30 days of the action, and makes failure to so report unprofessional conduct subject to discipline. Otis, Coan & Peters, LLC Page 140 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Restate the grounds for disciplining a licensee on the basis of alcohol or drug abuse to specify that the use or abuse of alcohol or drugs must be habitual or excessive. Expand the medical board's authority to impose fines by eliminating the requirement that fines may only be imposed in lieu of license suspension, and reduce the maximum amount of such fines from $10,000 per violation to $5,000 per violation. Consolidate provisions concerning unauthorized practice under the act and clarify that physician assistants are also subject to penalties for engaging in the unauthorized practice as a physician assistant. The following requirements are imposed on licensees: The minimum level of professional liability coverage that physicians are required to maintain is increased from $500,000 per incident to $1 million per incident, and from $1.5 million annual aggregate per year to $3 million annual aggregate per year. Physicians and physician assistants are to make arrangements for the safekeeping of patient medical records in their custody if the physician or physician assistant ceases practice. Each physician and physician assistant is required to develop a plan detailing these arrangements, certify to the medical board that he or she has developed the plan, and notify patients as to how to access their records if the physician or physician assistant is unavailable to provide the records. The time period for which physicians must report their licensing histories is limited to the prior 10 years. Physician assistants are allowed to be shareholders in a professional service corporation formed by licensed physicians for the practice of medicine. APPROVED by Governor June 10, 2010, EFFECTIVE July 1, 2010 NOTE: Certain sections of the act are contingent on S.B. 10-124, H.B. 10-1224, and H.B. 10-1128 being enacted and becoming law. House Bill 10-1128 was signed by the governor April 24, 2010; Senate Bill 10-124 was signed by the governor June 10, 2010; House Bill 1224 was signed by the governor June 10, 2010. H.B. 10-1288 Real estate brokers - commercial real estate - commission for procuring tenant on behalf of owner - lien to enforce payment - conditions - procedure. Existing law allows architects, building contractors, auto mechanics, and others to enforce debts through creation of a lien on real or personal property. The act extends this enforcement mechanism to real estate brokers who procure tenants for commercial real estate under a written agreement giving the broker a right to compensation. The act places conditions on the real estate broker's right to the lien, including an obligation to seek mediation of the dispute; to give notice of the intent to pursue enforcement of the debt through the lien process, both before and after recording the notice of lien; and to commence a lawsuit within 6 months if the debt is not paid. The act makes it an affirmative defense that the owner has paid any compensation owed to the listing broker in an amount sufficient to satisfy the contractual and legal obligations of the owner, including compensation to the tenant's broker. The act applies to cases in which a written agreement is entered into on or after the applicable effective date of the act. APPROVED by Governor April 29, 2010, EFFECTIVE August 11, 2010. Otis, Coan & Peters, LLC Page 141 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 H.B. 10-1415 Surgical assistants and surgical technologists - registration - employer verification - disciplinary authority of director of division of registrations - repeal under sunset law - appropriation. Effective April 1, 2011, surgical assistants and surgical technologists will have to pay a fee to, and register with, the director of the division of registrations in the department of regulatory agencies. The director will then create a database of registered surgical assistants and surgical technologists. Employers of surgical assistants and surgical technologists will be required to check the database before allowing a surgical assistant or surgical technologist to perform his or her duties and to notify the director of conduct that may violate the act. Such employers will have limited immunity for providing job references to other prospective employers. The director will have standard disciplinary authority, and the new provisions will repeal on September 1, 2016, subject to the sunset review law. APPROVED by Governor June 5, 2010, EFFECTIVE August 11, 2010 19. PROPERTY S.B. 10-156 Mobile homes - Mobile Home Park Act - eviction notice period - period to move a mobile home following a court order - right to peaceably assemble - landlord remedies - water and sewer service - change of uses notification - attorney fees - access to utility infrastructure. The act makes several changes to the "Mobile Home Park Act". Specifically, the act: - Adds manufactured homes to the definition of mobile homes; - Increases the notice period for eviction from 30 days to 60 days, unless there is a substantial violation necessitating an immediate eviction; - Requires a mobile home park owner to notify the mobile home owners in writing within 17 days of receipt of notice of condemnation; - Requires any notice of termination to include a statement advising the tenant of the tenant's right to mediation. Extends the deadline for a tenant to move a mobile home to up to 30 days after entry of judgment if the tenant prepays all back rent owed and prorate rent that will be incurred - Specifies mobile home owners' right to peaceably assemble in the mobile home park; - Clarifies that a landlord may be entitled to a money judgment as calculated by the court following a forcible entry and detainer action; - Specifies a landlord's duty to ensure that mobile home owners receive water and sewer service; - Requires a landlord to notify the municipality as well as the home owners of any intent to change the use of the mobile home park; - Requires the award of reasonable attorney fees to a successful home owner in a private civil action; - Requires a landlord to grant county or municipal employees access to the park for the purposes of investigating and studying the utility infrastructure in circumstances when the health or safety of park residents is in danger. APPROVED by Governor June 5, 2010, EFFECTIVE July 1, 2010 H.B. 10-1017 Rent control statute - exception for voluntary agreements between governmental entity and property owner - exception for deed restrictions arising out of voluntary agreements - effect on permit applications. Otis, Coan & Peters, LLC Page 142 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Current law prohibits counties and municipalities from enacting any ordinance or resolution that would control rent on private residential property (rent control statute). The act clarifies that the rent control statute applies to either private residential property or private residential housing units. For purposes of the rent control statute, an ordinance or resolution that would control rent on either private residential property or a private residential housing unit shall not include: - A voluntary agreement between a county or municipality and a permit applicant or property owner to limit rent on the property or unit or that is otherwise designed to provide affordable housing stock; or - The placement on the title to the unit of a deed restriction that limits rent on the property or unit or that is otherwise designed to provide affordable housing stock pursuant to a voluntary agreement between a county or municipality and a permit applicant or property owner to place the deed restriction on the title. An agreement authorized under the terms of the act may further specify how long either private residential property or a private residential housing unit is subject to its terms, whether a subsequent property owner is subject to the agreement, and remedies for early termination agreed to by both the permit applicant or property owner and the county or municipality. A county or municipality may not deny an application for a development permit because an applicant for such a permit declines to enter into an agreement to limit rent on either private residential property or a private residential housing unit. APPROVED by Governor May 6, 2010, EFFECTIVE August 11, 2010 H.B. 10-1240 Foreclosure process - residential properties - deferment period - correction of erroneous notice. Current law allows a 90-day foreclosure deferment period for eligible borrowers and requires that a notice of such opportunity be posted on the eligible borrower's property. If the public trustee is incorrectly notified that a property is eligible for such a posting, the act establishes ways to correct such notice. Current law requires the public trustee to hold a hearing before foreclosing on a property. The act requires a notice to be posted at least 15 days before the hearing on the property subject to the sale, and clarifies that the notice of opportunity for foreclosure deferment may not be posted prior to the date the public trustee determines that the documents filed for the commencement of the foreclosure are complete and accurate. The act also requires that the notice of opportunity for foreclosure deferment include a telephone number for the holder and, if applicable, the attorney for the holder and the public trustee foreclosure number. The act also gives general rule-making authority to the division of housing in the department of local affairs related to the deferment process. The act requires a foreclosure counselor to inform the holder if an eligible borrower who qualifies for a foreclosure deferment chooses not to participate. It also prohibits an eligible borrower from qualifying for a foreclosure deferment if the borrower has transferred title to the property to another party. APPROVED by Governor May 5, 2010, EFFECTIVE May 5, 2010 H.B. 10-1249 Residential real property - public trustee - abandoned homes - court order - expedited foreclosure sales. Currently, the initial foreclosure sale date for residential real property by a public trustee is set between 110 and 125 calendar days after the recording of the notice of election and demand (notice). For a 3-year period, an eligible holder of an evidence of debt (holder) may elect to have an expedited sale of residential property, which will occur between 45 and 65 calendar days after the recording of the notice. In order for the expedited sale to be conducted, a court must issue an order for expedited sale (order), and a copy of the order must be filed with the public trustee. The court shall only issue an order if clear and convincing evidence is presented proving that the property has been abandoned or that the grantor of the deed of trust requests the order for expedited sale. An affidavit that meets certain criteria Otis, Coan & Peters, LLC Page 143 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 is prima facie evidence of abandonment. If an expedited sale is set, the following changes apply to the public trustees' foreclosure process: - Replaces the original mailing list with an expedited mailing list, which is filed later and includes all persons on an amended mailing list; - Eliminates notice related to a foreclosure deferment; - Eliminates the first mailing of the combined notice; - Requires the second mailing of the combined notice to be sent earlier; - Establishes a deadline for delivering an amended mailing list; - Requires a copy of a section of the expedited sale law to be mailed with the combined notice; - Reduces the publication of the combined notice to 4 times and requires the publication to be completed more than 5 business days prior to the sale; and - Limits a holder's ability to request a continuance of the expedited sale. APPROVED by Governor April 29, 2010, EFFECTIVE April 29, 2010 H.B. 10-1278 Common interest communities - HOA information and resource center - creation - annual registration fee - sunset review - appropriation. Current law provides for the creation of common interest communities (usually residential subdivisions), governed by unit owners' associations (HOAs). Such entities are created by contract, through recorded documents containing mutually binding covenants that homeowners and HOAs must enforce, if at all, through private legal action. There is no state agency supervising the operation of HOAs or enforcing compliance by either individual homeowners or HOAs with the requirements of state law. The act creates the HOA information and resource center, under the direction of an HOA information officer, to act as a clearing house for information on the law governing HOAs, to track inquiries and complaints, and to report annually to the director of the division of real estate (director) regarding the number and type of inquiries and complaints received. All HOAs will be required to register annually, and HOAs that have annual revenues over $5,000 or have revenue and are authorized to make assessments will be required to pay a fee of up to $50 defray the center's operating costs. An HOA that fails to register and pay the annual fee is not eligible to pursue a lien for assessments or otherwise enforce its rights and remedies under the "Colorado Common Interest Ownership Act". The act makes the director's determinations with regard to registration and fees appealable in the same manner as other administrative determinations. APPROVED by Governor June 7, 2010, EFFECTIVE January 1, 2011 H.B. 10-1358 Home builders - water efficiency options. Effective January 1, 2011, the act requires every person that builds a new single-family detached residence for which a buyer is under contract to offer the buyer the opportunity to select one or more of the following water-smart home options for the residence: - Installation of water-efficient toilets, lavatory faucets, and showerheads; - If dishwashers or clothes washers are financed, installed, or sold as upgrades through the home builder, the model selected must be qualified pursuant to the federal environmental protection agency's energy star program at the time of offering; - If front yard landscaping is financed, installed, or sold as upgrades through the home builder and will be maintained by the home owner, the home builder must offer a landscape design that follows specified best management practices to ensure both the professional design and installation of such landscaping and that water conservation will be accomplished, including xeriscaping; water budgeting; landscape design; landscape Otis, Coan & Peters, LLC Page 144 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 installation and erosion control; soil amendment and ground preparation; tree placement and planting; irrigation design, installation, technology, and scheduling; and mulching; and - Installation of a pressure-reducing valve that limits static service pressure in the residence to a maximum of 60 pounds per square inch. APPROVED by Governor June 9, 2010, EFFECTIVE January 1, 2011 NOTE: This act was passed without a safety clause. For further explanation concerning the effective date, see page vi of this digest. 20. PUBLIC UTILITIES S.B. 10-177 Biomass - taxation - electric generation - renewable energy standard. The act exempts forestry equipment from property taxes, effective July 1, 2013. Biomass energy facilities will be valued for the purpose of property taxation in the same manner in which wind or solar energy facilities are valued. The public utilities commission (PUC) may consider electric utilities' acquisition of generation capacity from the combustion of woody biomass, biosolids derived from the treatment of wastewater, and municipal solid waste. APPROVED by Governor June 9, 2010, EFFECTIVE August 11, 2010 S.B. 10-180 Electric utilities - transmission and distribution facilities - smart grid technology - task force - study - report. The act creates an 11-member Colorado smart grid task force to gather information and report to the governor, general assembly, and Colorado public utilities commission on issues related to the implementation of a smart energy grid in Colorado. The task force's initial report is due by January 20, 2011, and the task force is directed to meet periodically to update the information in the report. The act provides for funding of the task force's activities through gifts, grants, donations, and an anticipated $20,000 in federal stimulus funds and contains a 5-year sunset provision. APPROVED by Governor June 11, 2010, EFFECTIVE June 11, 2010 H.B. 10-1001 Electricity - renewable energy resources - portfolio standard - increase in percentage - incentives - standards for solar installations - regulation by public utilities commission - appropriation. Existing law creates a renewable energy portfolio standard (RPS) under which certain electric utilities are required to generate an increasing percentage of their electricity from renewable sources, in a series of increments from 3% in 2007 to 20% in 2020 and thereafter. The act boosts these RPS percentages to achieve 30% renewable generation by 2020 and requires a portion of the RPS to be met through a subset of renewable generation, "distributed generation" (DG). The act defines terms, increases the RPS percentages, and, within each RPS percentage, requires an increasing portion to be derived from DG (which includes customer-sited solar generation), of which half must represent retail DG acquisitions. The Colorado public utilities commission (PUC) may reduce the DG percentages after 2014, upon application by a utility, if it finds that the existing percentage requirements are no longer in the public interest and, if the PUC finds that an increase is in the public interest, directs the PUC to so notify the general assembly. The existing 1.25 multiplier for in-state renewable electric generation, as applied to DG, is limited to wholesale DG only. The PUC is given discretion to incrementally reduce the existing standard rebate offer (which utilities must pay as an incentive for new customer-sited renewable generation facilities such as rooftop solar panels) from $2 per watt to some lesser amount if the PUC finds that market changes support the change. For large DG facilities of one megawatt or more, the PUC is directed to require registration with a regional system for tracking renewable energy generation. The act also: Otis, Coan & Peters, LLC Page 145 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 - Allows a utility, upon approval by the PUC, to advance funds from year to year for the acquisition of renewable energy resources so long as it does not exceed the existing 2% retail rate cap; - Directs the PUC to ensure that, as between residential and nonresidential DG acquisitions, a utility allocates its expenditures according to the proportion of its revenues derived from each; - Increases the threshold at which a utility may negotiate purchases of renewable energy credits (RECs) from individual customers from 100 kw to 500 kw (this is a correction to conform to changes made in 2009 legislation); - Allows the commission to determine a reasonable retail rate that solar program participants should continue to pay into the renewable energy standard adjustment; and - Creates a rebuttable presumption of prudence for actions taken by a utility under an approved compliance plan. Effective January 1, 2012, new photovoltaic (PV) installations must be funded wholly or partly through ratepayer incentives and rebates must be installed by licensed electricians or apprentices, where appropriate, and supervised by persons who are certified by the North American board of certified energy practitioners (NABCEP) or another nationally recognized organization designated by the state electrical board. Depending on whether the PV system has a direct current design capacity of 500 kw or more, the act specifies the stages of construction at which at least one of every 4 workers present must be a licensed electrician, registered electrical apprentice, or NABCEP-certified energy practitioner. The PUC is directed to consider employment and economic factors when evaluating proposed new electric generation resource acquisitions by utilities, including the use of "best value" employment metrics such as the availability of training programs and the wages, health benefits, and pensions that workers will earn. Any committee formed by executive order for the purpose of studying the desirability of regulating solar installers is expressly authorized to submit a request for sunrise review by the department of regulatory agencies under the state's sunrise law. For PV projects funded by federal or state grants or by clean energy loans made through the state's clean energy finance program, the licensing and NABCEP requirements apply beginning July 1, 2011. APPROVED by Governor March 22, 2010, EFFECTIVE August 11, 2010 H.B. 10-1098 Cooperative electric associations - governance - board of directors - elections - meetings - notices. Existing law allows cooperative electric associations (associations) to exempt themselves from regulation by the public utilities commission and become self-governing, under the control of a board of directors (board) elected by member-consumers (members). Current provisions concerning board meetings, notices, elections, and conflicts of interest lack specificity in some areas. The act gives members the right to address the board about issues to be decided by the board at meetings, subject to reasonable, viewpoint-neutral restrictions on the amount and duration of public comment. It also requires the posting of meeting minutes on the association's web site. Notice of board meetings must be posted on the web site at least 10 days in advance for regular meetings and as soon as possible for special meetings. The association must adopt, and post on its web site, a written policy governing elections of directors and information about how a member may become a candidate for a position on the board. In addition, the date of an election and notice of the ballot mailing deadline for the election must be posted in advance, and candidates for positions on the board must be given equal access to member lists. Board members must supply their contact information for use by members. The act also requires the order of names on the ballot to be determined randomly, without automatically assigning the top line to the incumbent, and prohibits the association or the board from supporting or Otis, Coan & Peters, LLC Page 146 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 opposing a candidate. Finally, the act states that, in case of any conflict between the provisions governing associations and the general law governing nonprofit corporations, the provisions governing associations will control. APPROVED by Governor June 11, 2010, EFFECTIVE August 11, 2010 H.B. 10-1167 Motor carriers - property carriers - safety and insurance requirements - regulatory authority - jurisdiction of public utilities commission and department of revenue. Recent changes to federal law preempted the state's authority over property carriers by motor vehicle, subject to limited exceptions for safety and insurance requirements. Last year's H.B. 09-1244 curtailed the authority of the public utilities commission over property carriers generally, but did not contain specific provisions for movers and other carriers previously subject to limited or special treatment within the motor vehicle statutes. The act: Makes conforming amendments as required to apply H.B. 09-1244 to these special cases; and Grants enforcement authority to the ports of entry within the department of revenue to check for valid insurance. APPROVED by Governor April 15, 2010, EFFECTIVE April 15, 2010 H.B. 10-1276 Railroads - sale of railroad right-of-way for operation of public passenger rail service. Any railroad company may sell its right-of-way for the operation of a public passenger rail service, defined as any passenger service that runs on rails or electromagnetic guideways. The right-ofway shall continue to be used as a public highway only for operation of public passenger rail service if ownership of the right-of-way is transferred to a public passenger rail service provider, regardless of: Whether or not an order of abandonment has been issued for the right-of-way by the federal surface transportation board, any successor federal agency, or by any court of competent jurisdiction; The technology used to operate the public passenger rail service; or Whether ownership of the railroad is public or private. Nothing in the act shall be construed to affect any vested right of any party. No rail service provider operating public passenger rail service shall be required to offer its right-of-way for use by any other rail service provider by operation of Colorado law after an order of abandonment has been issued. APPROVED by Governor May 5, 2010, EFFECTIVE August 11, 2010 21. TRANSPORTATION S.B. 10-16 Toll evasion - modification of civil penalty assessment notice requirements. The act modifies the manner in which civil penalty assessment notices of toll evasion evidenced by automatic vehicle identification technology are provided to an owner of a vehicle so identified and the manner in which appeals of administrative adjudications of toll evasion by a public highway authority or the high-performance transportation enterprise are reviewed by county courts by: Eliminating the requirement that a second civil penalty assessment notice be sent if the owner does not pay the civil penalty imposed by or otherwise respond to an initial civil penalty assessment notice; Increasing the length of time to pay or otherwise respond to an initial civil penalty assessment notice from 20 to 30 days; and Changing an appeal of an administrative adjudication of a toll evasion from a review of the record of the administrative adjudication to a de novo hearing. APPROVED by Governor April 21, 2010, EFFECTIVE April 21, 2010 H.B. 10-1147 Use of nonmotorized wheeled transportation by minors - codification of bicycle and pedestrian policy of the department of transportation - safety education. The act codifies the existing bicycle and pedestrian policy directive of the department of transportation (CDOT) into law. The act also requires CDOT, in collaboration with the departments of Otis, Coan & Peters, LLC Page 147 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 education and public safety and appropriate nonprofit organizations and advocacy groups, to notify schools of the availability of and make available to schools existing educational curriculum regarding the safe use of public streets and premises open to the public by users of nonmotorized wheeled transportation and pedestrians. APPROVED by Governor June 10, 2010, EFFECTIVE June 10, 2010 22. WATER AND IRRIGATION S.B. 10-27 Surface water - enforcement - fine. The act subjects a person who illegally diverts surface water to the same $500-per-day fine that currently applies to illegal diversions of groundwater. APPROVED by Governor April 14, 2010, EFFECTIVE April 14, 2010 S.B. 10-52 Designated groundwater basins - boundaries - ability of designated groundwater commission to alter boundaries. The act will allow the groundwater commission to revise the boundaries of a designated groundwater basin (basin) to omit previously included areas only if the revision would not exclude any wells for which conditional or final permits have been issued. This is declared to be consistent with the general assembly's original intent to prohibit challenges to the legal status of designated groundwater in a basin after the date of finality for a basin's original designation. APPROVED by Governor March 31, 2010, EFFECTIVE August 11, 2010 Rules Changes COLORADO APPELLATE RULES Rule 4 (appeal as of right) - Added new sub (2) specifying that procedure for appealing death sentences is as outlined in Rule 32.2, C.A.R. and deleted prior language in this subsection. Rule 32 (withdrawal) - Added (b)(7) requiring notice of withdrawal also state that if client is not a natural person, that it must be represented by counsel unless it is a closely held entities and complies with 13-1-127, C.R.S. COLORADO RULES OF CIVIL PROCEDURE Rule 2 (media coverage) Rule 10 (form and quality of pleadings) - 1 top margin applies to JDF or SCAO forms created on or after April 5, 2010. Rule 16 (case management) - Added language to TMO section requiring parties in a case where a jury trial will be held to confer about and advise the court how much time is requested for juror examination and the reasons therefor. Otis, Coan & Peters, LLC Page 148 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Rule 47 (jurors) - Added the following language to subsection (a)(5): Jurors shall be told that they may not discuss the case with anyone until the trial is over with one exception: jurors may discuss the evidence among themselves in the jury room when all jurors are present. Jurors shall also be told that they must avoid discussing any potential outcome of the case and must avoid reaching any conclusion until they have heard all the evidence, final instructions by the court and closing arguments by counsel. The trial court shall have the discretion to prohibit or limit pre-deliberation discussions of the evidence in a particular trial based on a specific finding of good cause reflecting the particular circumstances of the case. - Clarified language in subsection (u) that the trial court shall have the discretion to prohibit or limit questions in a particular trial based on a specific finding of good cause reflecting the particular circumstances of the case. - Added language to describe when addition time for juror examination may be requested by a party and the standards for determining when additional time should be considered. Subsection (a)(3) now reads: The judge shall ask prospective jurors questions concerning their qualifications to serve as jurors. The parties or their counsel shall be permitted to ask the prospective jurors additional questions. In the discretion of the judge, juror questionnaires, posterboards and other methods may be used. The judge may reasonably limit the time available to the parties or their counsel for juror examination based on the needs of the case. Any party may request additional time for juror examination in the Trial Management Order, at the commencement of the trial, or during juror examination based on developments during such examination. Any such request shall include the reasons for needing additional juror examination time. Denial of a request for additional time shall be based on a specific finding of good cause reflecting the nature of the particular case and other factors that the judge determines are relevant to the particular case and are appropriate to properly effectuate the purposes of juror examination set forth in section (a) of this Rule. The court may limit or terminate repetitious, irrelevant, unreasonably lengthy, abusive, or otherwise improper examination. Rule 120 (foreclosures) - Added language that posting may be electronic on court s public website so long as website is displayed at courthouse. Rule 120.1 (expedited foreclosures) - Added new rule about expedited foreclosure procedure consistent with new statute Rule 121, 1-1 (withdrawal) - Added (b)(v) requiring notice of withdrawal also state that if client is not a natural person, that it must be represented by counsel unless it is a closely held entities and complies with 13-1-127, C.R.C. COLORADO RULES OF COUNTY COURT PROCEDURE Rule 307 (pleadings and motions) - Repealed subjection (b) that precluded motions practice in County Court. (Effective 4/5/10) Otis, Coan & Peters, LLC Page 149 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 COLORADO PROBATE COURT Forms amended and new forms adopted effective June 7, 2010: AMENDED FORMS JDF 721 Irrevocable Power of Attorney Designating Clerk of Court as Agent for Service of Process JDF 805 JDF 841 JDF 857 JDF 862 JDF 876 JDF 878 JDF 879 JDF 883 JDF 912 JDF 940 JDF 941 JDF 999 Acceptance of Office Petition for Appointment of Guardian for Adult Petition for Appointment of Co-Guardian or Successor Guardian Order Appointing Conservator for Minor Petition for Appointment of Conservator for Adult Order Appointing Conservator for Adult Petition for appointment of Co-Conservator or Successor Conservator Order Regarding Conservator s Financial Plan Renunciation and/or Nomination of Personal Representative Information of Appointment Decedent s Estate Inventory Collection of Personal Property by Affidavit NEW FORMS JDF 733 Motion for Release of Trust Registration Statement JDF 734 Order to Release Trust Registration Statement Note 1: The Colorado Code of Judicial Conduct was repealed, amended and readopted as amended in its entirety effective July 1, 2010. Note 2: The Federal Rules of Civil Procedure and corresponding local rules for the District of Colorado have been amended, including some timeframes related to Motions for Summary Judgment and scheduling and pretrial orders. Notably, FRCP 26(b)(4) has been amended to provide work-product protection against discovery of draft expert reports and communications between an attorney and the expert. Changes are effective 12/1/10. Otis, Coan & Peters, LLC Page 150 of 151
7th Annual Nuts & Bolts CLE Civil Law Update December 10, 2010 Miscellaneous Justice Kourlis Project for modified civil rules for business and medical malpractice cases. The Colorado Supreme Court is considering a major revision to the Colorado Rules of Civil Procedure based upon recommendations made by former Justice Kourlis and the Institute for the Advancement of the American Legal System. A pilot project in Denver is being proposed that would, among other things, include a shift from notice pleading to pleading all material facts known, prohibit depositions of experts, limit experts to one per side per issue, and accelerate document and witness disclosures. For more information, see the materials that follow or visit the Institute online at www.du.edu/legalinstitute. Other Possible Rule Changes on the Horizon: Issues regarding local bans on electronic devices in the courthouse: The 6 th Judicial District has banned all electronic devices in the courthouse, which is prompting issues for attorneys who use BlackBerrys and other devices to keep their calendars and conduct business. The Supreme Court Rules Committee is thus looking at rules to address the concerns about the use of such devices by people going to court, including jurors, to make them uniform across the state. The Supreme Court Rules Committee is also looking at modifications to the timing for filing a response to a motion for summary judgment (making it 21 days to respond and 14 days to reply), and addressing the time computations related to Rule 120 filings. The Supreme Court Rules Committee is also considering revisions to Rule 45 to provide guidelines for subpoenas Duces Tecum for medical records and other confidential information, and revisions to Rule 69 to allow for service of post-judgment discovery on the debtor pursuant to Rule 4 or Rule 45. On behalf of the 19 th Judicial District Bench-Bar Committee, the Weld County Bar Association, Inc., and especially on behalf of Jennifer Lynn Peters, the presenters wish to extend a HUGE THANKS and eternal gratitude to Dawn Schmidt for her hard work and tireless effort in putting together this year s CLE. We also wish to thank Kim Tregoning for her assistance in putting these materials together, and Amanda Vandagriff, Michael Peters, and Shannan Sullivan for their assistance with this year s CLE, and the law firm of Otis, Coan & Peters, LLC for allowing half of their staff to help put this year s CLE together. Otis, Coan & Peters, LLC Page 151 of 151
Civil Access Pilot Project Applicable to Business and Medical Negligence Actions in District Court October 2010
Civil Access Pilot Project Applicable to Business and Medical Negligence Actions in District Court Preamble These Pilot Project Rules ( PPR ) are meant to apply the Principles set forth in the Final Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery and Civil Justice and the Institute for the Advancement of the American Legal System. These Rules govern all pretrial process in all actions that are part of the pilot project. They will be applied only to business and medical negligence actions, as defined in Appendix A. Inclusion in the pilot project will be determined based on the contents of the complaint at the commencement of the action. The PPR are not meant to be a complete set of rules. The Colorado Rules of Civil Procedure ( CRCP ) will govern except to the extent that there is an inconsistency, in which case the PPR will take precedence. Pilot Project Rule 1 Scope 1.1. These Rules shall be construed and administered to secure the just, timely, efficient, and cost-effective determination of all actions. Continuances and extensions are strongly disfavored. 1.2. At all times, the court and the parties shall address the action in ways designed to assure that the process and the costs are proportionate to the needs of the case. The proportionality factors include, for example and without limitation: amount in controversy, and complexity and importance of the issues at stake in the litigation. This proportionality rule is fully applicable to all discovery, including the discovery of electronically stored information. Committee Comment to PPR 1 It is the purpose of these PPR to replace the broad discovery currently allowed by CRCP 26 with proportionate discovery as set forth in these rules. Under PPR 9, all facts are not necessarily subject to discovery. The proportionality factors that are provided in existing rules and restated in the PPR will thus shape the process for the case, in order to achieve the goals stated in PPR 1. Motions for extensions are strongly disfavored. The court is encouraged to address these motions immediately, without waiting for a response, and deny them absent extraordinary circumstances. Parties may not stipulate to extensions. Pilot Project Rule 2 Pleadings Form and Content 2.1. While notice pleading remains the standard, the party that bears the burden of proof with respect to any claim or affirmative defense should plead all material facts that are known to that party that support that claim or affirmative defense and each remedy sought, including any known monetary damages. A material fact is one that is essential to the claim or defense and without which it could not be supported. 1
2.2. Any statement of fact that is not denied with specificity in any responsive pleading is deemed admitted. General denials of any statement of fact are not permitted and a denial that is based on the lack of knowledge or information shall be so pleaded. Committee Comment to PPR 2 PPR 2 expects that the pleading party will plead all material facts known to that party that support a claim or affirmative defense. PPR 2 is not intended to impose higher requirements for stating a claim, resuscitate the technicalities associated with commonlaw pleading, foreclose access to the courts, create additional procedural burdens, or require subsequent, serial amendments to the pleadings of claims and defenses. Rather, the intent of PPR 2 is to utilize the pleadings to identify and narrow the disputed issues at the earliest stages of litigation and thereby focus the discovery. Adherence to the PPR, with their emphasis on early, complete disclosures and frequent case management conferences, should continually inform the parties and the court of the issues, claims and defenses in the case, and obviate the need for ongoing amendments to the pleadings. The court will retain discretion on questions of whether to require any party to supplement their pleadings. The material facts pleaded should provide the who, what, when, where, and how of each element of a claim or defense. The pleading requirements apply equally to affirmative defenses. Several examples are set forth in Appendix B. If a pleading party cannot through due diligence obtain facts necessary to support one or more elements of the claim, the party may plead such facts on information and belief, again with as much detail as possible. However, this provision should not be used in a manner that evades the intent of the rule. The requirement that parties plead each remedy sought is not intended to preclude alternative remedies at the outset. The damages required to be plead are only those damages that can be quantified at the time of filing the action. Pilot Project Rule 3 Pleadings and Initial Disclosures 3.1. No later than 15 days after service of a pleading making a claim for relief, the pleading party shall file with the court a statement listing all persons with information related to the claims and a brief description of the information each such individual is believed to possess, whether the information is supportive or harmful. The statement shall also include a certification that the party has available for inspection and copying all reasonably available documents and things related to the claims, along with a description by category and subject area of the documents and things being disclosed, whether they are supportive or harmful. 3.2. The due date for responsive pleadings shall be 15 days following the filing of the statement required by PPR 3.1. 2
3.3. No later than 15 days after service of a pleading defending against a claim for relief, the pleading party shall file with the court a statement listing all persons with information related to the claims for relief and the defenses asserted and a brief description of the information each such individual is believed to possess, whether the information is supportive or harmful. The statement shall also include a certification that the party has available for inspection and copying all reasonably available documents and things related to the claims and defenses, along with a description by category and subject area of the documents and things being disclosed, whether they are supportive or harmful. 3.4. Parties shall make these disclosures in good faith and may not object to the adequacy of the disclosures until the initial case management conference pursuant to PPR 7.1, at which time they may raise those issues. 3.5. When a party withholds information by asserting that the information is privileged or subject to some other protection, the party shall make the assertion expressly and shall provide a privilege log that describes the nature of the documents, communications, or things not produced or disclosed in a manner which, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection. 3.6. Each party has an ongoing duty to supplement the initial disclosures promptly upon becoming aware of the supplemental information. 3.7. Compliance with these disclosure requirements is essential to the appropriate functioning of these Rules. Therefore, unless the court makes a specific determination that failure to disclose in a timely manner was justified under the circumstances or harmless, such failure shall result in one or more of the following: (a) a denial of the right to use the information not disclosed for any purpose; (b) a denial of the right to object to the admissibility of the evidence; (c) a dismissal of all or part of any claim or defense; (d) assessment of attorney fees and costs; and (e) any other sanction the court deems appropriate. Committee Comment to PPR 3 Rule 3 is intended to require the exchange of meaningful information at an early stage by all parties. Parties are expected to comply with the initial disclosure requirements in a timely manner, and the court is expected to enforce the requirements fully. The presumptive categories of documents and information to be disclosed for specific types of civil actions, such as breach of contract actions and medical negligence actions, are set forth in Appendix C. 3
Because these are pilot rules and not implemented statewide, there may be instances in which a plaintiff has filed and served a complaint, and/or a defendant has in turn provided an answer in compliance with the requirements of CRCP, prior to receiving notice that their case has been included in the pilot project. In such instances, the plaintiff shall be allowed to file and serve an amended complaint, in compliance with the requirements of PPR 2, and the defendant shall be allowed to file and serve an amended answer, with the benefit of the plaintiff s initial disclosures and in compliance with the requirements of PPR 2. These issues can be addressed at the initial case management conference. Pilot Project Rule 4 Motion to Dismiss 4.1. Any motion to dismiss shall be filed within 15 days of service of a pleading making a claim for relief. The filing of such motion shall not impact any other requirements of these rules. Committee Comment to PPR 4 It is the intent of Rule 4 that upon the filing of a motion to dismiss, the pleading and initial disclosure requirements of PPR 3, and the scheduling of the initial case management conference under PPR 7 shall continue unaffected. This is a substantial departure from the current process in Colorado state courts, which provides an automatic stay of all further action, including discovery, pending resolution of the motion to dismiss. Again, the intent of the Rules is to assure that the case moves in an efficient, even-handed way toward final resolution with all parties and the court being fully aware of the issues at as early a time as possible. Pilot Project Rule 5 Single Judge 5.1. As soon as a complaint is filed, a judge will be assigned to the case for all purposes, and, absent unavoidable or extraordinary circumstances, that judge will remain assigned to the case until final resolution, including any post-trial proceedings. It is expected that the judge to whom the case is assigned will handle all pretrial matters and will try the case. Committee Comment to PPR 5 The term unavoidable circumstances includes the judicial rotation systems followed in certain districts. It is expected that even in rotation districts, approximately 75 percent of all cases will be handled by the same judge through final resolution. Pilot Project Rule 6 Preservation of Relevant Documents and Things 6.1. Promptly after a civil action is commenced, the parties shall meet and confer concerning reasonable preservation of all relevant documents and things, including any electronically stored information. In the absence of an agreement, any party may move for an order governing preservation of such documents and things. Because the parties require a prompt response, the 4
court shall make an order governing preservation of such documents and things as soon as possible. Committee Comment to PPR 6 Unless directed otherwise by an order of the court, the cost of preserving, collecting and producing electronically stored information shall be borne by the producing party. The court shall consider shifting any or all costs associated with the preservation, collection and production of electronically stored information if the interests of justice and proportionality so require. Pilot Project Rule 7 Case Management Conferences 7.1. Unless requested sooner by any party, the judge to whom the case has been assigned shall hold an initial case management conference no later than 45 days after all responsive pleadings are filed pursuant to PPR 3.2. Each party s lead trial counsel shall attend this conference. At least three days before the conference, the parties shall submit a joint report setting forth their agreement or their respective positions on matters set forth in the form contained in Appendix D. 7.2. As soon as possible after the initial case management conference, the judge to whom the case is assigned shall issue an initial case management order with respect to each of the matters set forth in the form contained in Appendix D. Discovery and pretrial motions permitted by the case management order shall be permitted or excluded based on the proportionality factors in PPR 1.2. The court should consider, but is not bound by, the assessments made by the parties. Modifications to the initial case management order may be made only upon a showing of good cause. 7.3. At the request of any party for good cause shown, the judge, in the case management order, will set an expert testimony conference. No later than three days before that conference, the parties shall submit a proposed expert testimony order setting forth their agreement or their respective positions on the subject areas that require expert testimony at trial. As soon as practicable after the expert testimony conference, the judge shall issue an expert testimony order identifying the areas of expert testimony upon which expert witnesses may be utilized. Committee Comment to PPR 7.3 The date for production of expert reports shall be set in the case management order. Any issues or disputes regarding expert reports or expert testimony, including the limitations provided in PPR 10, will be addressed at that time, if known. If additional issues or disputes concerning expert reports or expert testimony arise during fact discovery, those issues or disputes will be discussed and resolved in a conference with the judge or at the expert testimony conference, if scheduled. The expert testimony conference is anticipated in medical negligence actions to facilitate simultaneous production of expert reports. 5
Pilot Project Rule 8 Ongoing Active Case Management 8.1. The court shall provide active case management from filing to resolution on all pending issues. 8.2. A party may request additional conferences with the court. The parties are encouraged to contact the court by telephone, or as otherwise directed by the court, to arrange for prompt telephonic conferences for clarification, modification or supplementation of any of the court s outstanding orders, or for resolving disputes regarding any pretrial matter. 8.3. The court may hold additional status conferences on its own motion. 8.4. A conference may be held in person or by telephone or videoconference, at the court s discretion. 8.5. The trial date shall be set in the initial case management order, or at the earliest practicable time thereafter, and shall not be changed absent extraordinary circumstances. Pilot Project Rule 9 Discovery 9.1. Discovery shall be limited in accordance with the initial case management order and expert testimony order, if applicable. No other discovery will be permitted absent further court order based on a showing of good cause and proportionality. 9.2. Discovery shall be limited to matters that would enable a party to prove or disprove a claim or defense or to impeach a witness and shall comport with the factors of proportionality in PPR 1.2. Pilot Project Rule 10 Expert Discovery 10.1(a) In accordance with the case management order and expert testimony order, if applicable, each retained expert and any party or representative of a party who is testifying in part as an expert, shall furnish a report signed by the expert and with each paragraph initialed by the expert, setting forth his or her opinions, and the reasons for them. Each expert witness report shall, at a minimum, contain: 1. a specific statement of the opinions by the expert and the facts and other information which form the basis for each opinion; 2. a listing of all of the material relied upon by the expert; 3. references to literature which may be used during the witness testimony; 4. any then-existing exhibit prepared by or specifically for the expert for use at trial; 6
5. witness curriculum vitae including a list of publications over the last 10 years; 6. a list of all trial or deposition testimony given by the witness in the last four years; 7. an accounting of all time spent on the case; and 8. a fee schedule. The form of the expert report is set forth in Appendix E. (b) The substance of each expert s direct testimony shall be fully addressed in the expert s report. (c) The parties shall obtain and voluntarily produce to all other counsel the files of their retained expert witnesses at the time the witness is disclosed and again within 28 days of trial. See Appendix E for a complete list of what the expert s file shall include. (d) There shall be no depositions or other discovery of experts. 10.2. Except in extraordinary cases, only one expert witness per side may be permitted to submit a report and testify in any given specialty and/or with respect to any given issue. Committee Comment to PPR 10.1 and 10.2 It is anticipated that any special issues relating to the disclosure of experts shall be addressed at the initial case management conference and at subsequent conferences as necessary. Because this rule limits the number of experts to be endorsed, if any retained expert becomes unavailable to testify at trial, the court, upon good cause shown, should liberally grant a request for substitution by an equivalent expert. Any substituted expert remains subject to all requirements of PPR 10. 10.3. In addition to Rules 10.1 and 10.2, the following provisions will apply in medical negligence actions: (a) Any dispute regarding the limitations set forth in Rule 10.2 will be discussed and resolved at the expert testimony conference and in the expert testimony order. If there are multiple parties on any side, this discussion will include sharing experts among multiple parties. There shall be a presumptive limit of one expert per side in a given specialty unless the parties are able to demonstrate a lack of commonality. Any side that obtains opinions of health care professionals beyond what is related to the professional s evaluation, diagnosis, care and treatment will be required to count that expert as a retained expert witness. (b) Should a defendant be endorsed to testify on the issue of his or her own standard of care then the plaintiff shall be entitled to have an additional retained expert witness on the standard of care with regard to that particular defendant. 7
(c) The expert witness reports will be produced simultaneously in accordance with the case management order. Rebuttal reports may be produced up to 40 days after the opposing party s disclosure of expert witness reports. Committee Comment to PPR 10.3 This comment pertains to medical negligence actions only. It is the intent of this Rule that a party cannot circumvent the rule on limitation of retained experts by providing additional information, beyond the information collected by a health care provider as part of the evaluation, diagnosis, care or treatment of the patient, in order to obtain expert opinions that the health care provider would not have had without the additional information. If a health care provider has been given records, reports, imaging, slides or other diagnostic information by a party, the provider should be deemed a retained expert. However, that person may still be deposed as a treating health care provider. The deposition shall be limited to opinions based upon or related to his/her evaluation, diagnosis, care or treatment and may include opinions on liability and/or causation if based on the information he/she obtained as part of his/her evaluation, diagnosis, care or treatment of the patient. A health care provider who has been given additional records, reports, imaging, slides or other diagnostic information by a party and has formulated opinions based upon those materials must comply with the reporting requirements of PPR 10.1. Nothing in these rules shall be construed to limit questions that can be posed to any defendant health care provider during deposition. In addition, this rule recognizes the right to request that opposing parties bring to deposition any information related to the issues in the case. Nothing in these rules shall be construed to limit cross examination of treating health care providers, either in trial or in deposition. Pilot Project Rule 11 Costs and Sanctions 11.1. In addition to the actions set forth in PPR 3.7, for any failure to provide, or for unnecessary delay in providing, required disclosures or discovery, the court may impose sanctions as appropriate. 8
APPENDIX A: Actions for Inclusion in the Colorado Pilot Project Business Actions. The court should handle the following types of actions under the Pilot Project Rules for business actions, whether the relief requested is legal or equitable. Pilot project business actions are not limited to business v. business, but also include disputes between businesses and individuals. (a) Breach of contract actions; (b) Business torts (e.g., unfair competition, fiduciary duty, fraud, misrepresentation), or statutory and/or common law violations where the breach or violation is alleged to arise out of business dealings (e.g., sales of assets or securities; corporate restructuring; partnership, shareholder, joint venture, and other business agreements); (c) Disputes involving transactions governed by the Uniform Commercial Code, excluding those concerning individual cooperative or condominium units; (d) Disputes involving commercial real property, excluding actions solely for the payment of rent, Colorado Rule of Civil Procedure 120 proceedings and uncontested receivership proceedings; (e) Owner/investor derivative actions brought on behalf of business organizations; (f) Commercial class actions; (g) Disputes involving business transactions with commercial banks and other financial institutions, excluding actions solely for the collection of debt; (h) Disputes involving the internal affairs of business organizations; (i) Disputes involving commercial insurance coverage, including directors and officers, errors and omissions, business interruption, and environmental; (j) Actions involving dissolution of corporations, partnerships, limited liability companies, limited liability partnerships and joint ventures; (k) Disputes involving securities laws; (l) Disputes involving antitrust laws; and (m) Disputes involving intellectual property, including state trademark laws. 9
As used herein, the term business organizations includes all forms of entities recognized by Colorado law, and applies to single owner or member entities, for profit and nonprofit entities, unincorporated associations, and sole proprietorships. Medical Negligence Actions. The court shall handle all actions alleging a breach of the standard of care by a health care provider and which are covered under the Colorado Health Care Availability Act (C.R.S. 13-64-101 to 503) as part of the pilot project. 10
APPENDIX B: Examples of Pleading Material Facts under PPR 2 Claim for Breach of Contract The pleader should provide a description of the nature of the contract, identify the relevant signatories and date of signature, and for each contract provision alleged to be breached, identify the provision and describe how it was allegedly breached. Claim for Medical Negligence The claimant should provide the facts related to each specific act of negligence and the nature of the claimed injury and damages. The defendant should state all facts related to the claims made as well as each defense asserted. Affirmative Defense Alleging the Running of the Statute of Limitations The pleader should state which claims are time-barred and, for each such claim, the applicable statute of limitations and specific time that has elapsed since the claim accrued. Affirmative Defense Alleging Comparative Negligence in a Medical Negligence Action The pleader should state the manner in which the claimant was negligent and how this conduct contributed to the claimed injury or damages. 11
APPENDIX C: Presumptive Categories of Documents and Information to be Disclosed Breach of Contract Actions Initial disclosures in breach of contract actions shall include: (a) the contract and any amendments; (b) any notices under the contract, including notices of breach or noncompliance, any responses thereto, and all correspondence, notes and emails relating thereto; (c) documents relating to performance or lack thereof, including all correspondence, notes and emails relating thereto; (d) all documents, including drafts, correspondence, notes and emails pertaining to the interpretation of the contract at issue; (e) documents relating to damages, including amount, causation and measure of damages; (f) company organizational charts; and (g) other documents the court determines. (h) In claims for breach of contract in which the formation of the contract is at issue and/or where a party seeks rescission, plaintiffs and defendants are required to disclose drafts, correspondence, notes, letters of intent and memorandums of understanding regarding the contract formation and negotiations surrounding entering into the contract. Medical Negligence Actions Initial disclosures in medical negligence actions shall include: (a) Plaintiff: 1. Medical records of the injury or condition at issue and any records as to the cause of the injury or condition at issue. 2. If a privilege is asserted to any record, the plaintiff shall submit a privilege log. The privilege log shall identify the record with sufficient specificity to allow determination of whether the assertion of the privilege is proper. 3. All subrogation and lien information regarding claimed medical expense. 4. Those portions of federal and state income tax returns related to any claimed lost earnings or lost earning capacity. 12
5. Diaries, calendars, blogs, notes, or similar materials prepared by plaintiff describing events or issues related to the claims. A privilege log shall be provided for any privilege claimed. 6. Other documents the court determines. (b) Defendants: 1. An index of policies, procedures, protocols, guidelines or similar documents related to relevant areas of care, allowing plaintiff to identify the documents to be requested in discovery. 2. Identification of incident or occurrence reports with production of factual information pertinent to the patient prepared by a person with direct knowledge. If a privilege is asserted, a privilege log will be prepared describing the document, with specificity including date and author. 3. Other documents the court determines. Committee Comment to Appendix C These are presumptive disclosures. Any dispute regarding these initial disclosures shall be addressed at the first case management conference. 13
Appendix D: Form for Initial Case Management Conference Joint Report of the Parties District Court County, Colorado Court Address: Plaintiff(s):, v. Defendant(s):, Attorney or Party Without Attorney (Name and Address): COURT USE ONLY Case Number: Phone Number: E-mail: FAX Number: Atty. Reg. #: Division Courtroom INITIAL CASE MANAGEMENT CONFERENCE JOINT REPORT OF THE PARTIES Pursuant to Colorado Pilot Project Rule (PPR) 7.1, the parties should discuss each item below. If they agree, the agreement should be stated. If they cannot agree, each party should state its position. If an item does not apply, it should be identified as not applicable. 1. Date for joinder of additional parties: 2. Amending or supplementing pleadings: 3. The timing of mediation or other alternative dispute resolution: 4. Dispositive motions: 14
5. The issues to be tried: 6. An assessment of the application to the case of the proportionality factors in PPR 1.2: 7. Production, continued preservation, and restoration of electronically stored information, including the form in which electronically stored information is to be produced and other issues relating to electronic information, including the costs: 8. Proposed discovery and limitations on discovery, consistent with the proportionality factors in PPR 1.2. Counsel will be required to represent to the Court at the conference that they have discussed the costs of the proposed discovery with their clients, or state to the court why they have not done so. a. adequacy of the initial disclosures: b. limitations on scope of discovery: c. limitations on the types of discovery: d. limitations on the number of written discovery requests: e. limitations on the number and length of depositions, and/or the total time of depositions allowed to each party: f. limitations on persons from whom discovery can be sought: g. limitations on the restoration of electronically stored information: h. cost shifting/co-pay rules, including the allocation of costs of the access to and production of electronically stored information: i. any other cost issues: 15
9. Proposed dates for: a. commencement of fact discovery: b. completion of fact discovery: c. disclosure of trial witnesses: 10. The amount of time required for the completion of all pretrial activities and the approximate length of trial: 11. Proposed date for trial: 12. Expert witnesses: 13. Proposed dates for: a. expert testimony conference, only if needed: b. production of expert reports: c. production of rebuttal expert reports: d. production of expert witness files: 14. Limitations on experts fees to be taxed as costs: 15. Computation of damages and the nature and timing of discovery relating to damages: 16. Other appropriate matters: 16
DATED this day of, 20. [signature block] [Attorney for Plaintiff] [signature block] [Attorney for Defendant] 17
APPENDIX E: Form for Disclosure of Expert Witness(es) District Court County, Colorado Court Address: Plaintiff(s):, v. Defendant(s):, Attorney or Party Without Attorney (Name and Address): COURT USE ONLY Case Number: Phone Number: E-mail: FAX Number: Atty. Reg. #: Division Courtroom [NAME OF PARTY] DISCLOSURE OF EXPERT WITNESS[ES] [NAME OF PARTY], by counsel, pursuant to Colorado Rule of Civil Procedure ( CRCP ) 26(a)(2), hereby discloses persons who may present evidence at trial pursuant to Colorado Rules of Evidence 702, 703, or 705: I. WITNESS[ES] RETAINED OR EMPLOYEE[S] OF DISCLOSING PARTY. The following person[s] have either (1) been retained or employed to provide expert testimony, or (2) are employees of the disclosing party whose duties regularly include giving expert testimony and for each such expert the following information is submitted: A. NAME, PROFESSIONAL ADDRESS, AND TELEPHONE NUMBER OF EXPERT. 18
B. A REPORT WHICH SHALL CONTAIN THE FOLLOWING: 1. A Specific Statement Of The Opinions By The Expert And The Facts And Other Information Which Form The Basis For Each Opinion: 2. A Listing Of All Of The Material Relied Upon By The Expert: 3. References To Literature Which May Be Used During The Witness Testimony: 4. Any Existing Exhibit Prepared By Or Specifically For The Expert For Use At Trial: 5. Witness Curriculum Vitae, Including A List Of Publications Over The Last 10 Years: 6. A List Of All Trial Or Deposition Testimony Given By The Witness In The Last Four Years: Name of Case Court Case Number Retained By Date D/T 7. Accounting Of All Time Spent On The Case: 8. A Fee Schedule: 9. A Certification That This Expert Has: [ ] prepared or reviewed the report, [ ] signed the report and, [ ] initialed each paragraph of the report. [Attach report hereto as an exhibit.] C. CERTIFICATION THAT THE FILE FOR THE EXPERT HAS BEEN PRODUCED. The term File includes exhibits which the expert may use at trial, e-mails, notes, billing information, telephone notes, correspondence, articles, medical literature which the expert reviewed or relied upon as the basis of his opinion, sticky notes a/k/a Post-It Notes, all reports authored by the expert, billing information to include any computerized billing records, any type of time logs, and any notes regarding time spent, copies of any chronologies, outlines and notes 19
supplied by counsel or created by the expert, and any medical literature, text or articles supplied by counsel or which may be used at trial. Any medical records which have been reviewed need not be produced unless they contain written notations, highlighting or other markings made by the expert. These records shall be identified by list only unless the record is not one which has been made available to the parties. Any depositions which have been reviewed need not be produced unless they contain written notations, highlighting, or other markings made by the expert. These depositions shall be identified by list only. II. WITNESS[ES] NOT RETAINED OR EMPLOYEE[S] OF DISCLOSING PARTY. The following person[s] may be called to provide expert testimony but have neither (1) been retained to provide expert testimony, nor (2) are employees of the disclosing party whose duties regularly involve giving expert testimony: A. NAME, PROFESSIONAL ADDRESS, AND TELEPHONE NUMBER OF WITNESS. 1. Qualifications: 2. Substance Of All Opinions To Be Expressed And The Basis And Reasons Therefor: DATED this day of, 20. [signature block] [Attorney for Disclosing Party] 20
21st Century Civil Justice System A Roadmap for Reform Pilot Project Rules
21st Century Civil Justice System: A Roadmap for Reform Pilot Project Rules Institute for the Advancement of the American Legal System at the University of Denver American College of Trial Lawyers Task Force on Discovery and Civil Justice
Institute for the Advancement of the American Legal System The Institute for the Advancement of the American Legal System (IAALS) is a national, non-partisan organization dedicated to improving the process and culture of the civil justice system. Executive Director and former Colorado Supreme Court Justice Rebecca Love Kourlis leads a staff distinguished not only by their expertise but also by their diversity of ideas, backgrounds and beliefs. IAALS provides principled leadership, conducts comprehensive and objective research and develops innovative and practical solutions all focused on serving the individuals and organizations who rely on the system to clarify rights and resolve disputes. IAALS is a part of the University of Denver, and it benefits from gifts donated to the University for its use. None of the gifts have conditions or requirements, other than accounting and fiduciary responsibility. All IAALS research and products are supported by pooled grants from individuals, businesses and private foundations. Institute for the Advancement of the American Legal System University of Denver 2044 E. Evans Avenue, HRTM Bldg., #307 Denver, CO 80208-2101 Phone: 303.871.6600 www.du.edu/legalinstitute INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM STAFF Rebecca Love Kourlis, Executive Director Pamela A. Gagel, Assistant Director Jordan M. Singer, Director of Research Michael Buchanan, Research Analyst Corina Gerety, Research Analyst Natalie Knowlton, Research Analyst Dallas Jamison, Director of Marketing & Communications Erin Harvey, Manager of Marketing & Communications Abigail McLane, Executive Assistant Stephen Ehrlich, Consultant Suzanne Gremaux, Consultant E. Osborne Ayscue, Jr., Charlotte, North Carolina, a member of the IAALS Board of Advisors and a Fellow of the American College of Trial Lawyers, participated as the Institute s liaison to the project. For reprint permission please contact IAALS. Copyright 2009 Institute for the Advancement of the American Legal System. All rights reserved.
American College of Trial Lawyers The American College of Trial Lawyers (ACTL), founded in 1950, is composed of the best of the trial bar from the United States and Canada. Fellowship in the College is extended by invitation only, after careful investigation, to those experienced trial lawyers who have mastered the art of advocacy and those whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality. Lawyers must have a minimum of 15 years experience before they can be considered for Fellowship. Membership in the College cannot exceed 1% of the total lawyer population of any state or province. Fellows are carefully selected from among those who represent plaintiffs and those who represent defendants in civil cases; those who prosecute and those who defend persons accused of crime. The College is thus able to speak with a balanced voice on important issues affecting the administration of justice. The College strives to improve and elevate the standards of trial practice, the administration of justice and the ethics of the trial profession. American College of Trial Lawyers 19900 MacArthur Boulevard, Suite 610 Irvine, California 92612 www.actl.com AMERICAN COLLEGE OF TRIAL LAWYERS TASK FORCE ON DISCOVERY AND CIVIL JUSTICE CHAIRPERSON Paul C. Saunders, New York, New York VICE-CHAIRPERSON Ann B. Frick, Denver, Colorado MEMBERS Robert L. Byman, Chicago, Illinois Hon. Colin L. Campbell, Toronto, Ontario Hon. Phillip R. Garrison, Springfield, Missouri William T. Hangley, Philadelphia, Pennsylvania Chris Kitchel, Portland, Oregon William Usher Norwood III, Atlanta, Georgia Collins J. Seitz, Jr., Wilmington, Delaware Lynette Labinger, Providence, Rhode Island Michael W. Smith, Richmond, Virginia Chuck Meadows, Dallas, Texas R. Joseph Parker, Cincinnati, Ohio Alan L. Sullivan, Salt Lake City, Utah Craig T. Merritt, Richmond, Virginia William N. Withrow, Jr., Atlanta, Georgia Edward W. Mullinix, Philadelphia, Pennsylvania Francis M. Wikstrom, Salt Lake City, Utah W. Foster Wollen, San Francisco, California Gordon W. Netzorg, Denver, Colorado Hon. Jack Zouhary, Toledo, Ohio
Contents A Message to Our Readers... 1 Pilot Project Rules Preamble... 2 Rule One Scope... 2 Rule Two Pleadings Form and Content... 3 Rule Three Precomplaint Discovery... 4 Rule Four Single Judge... 4 Rule Five Initial Disclosures... 4-5 Rule Six Motion to Dismiss/Stay of Discovery... 5 Rule Seven Preservation of Electronically Stored Information... 5 Rule Eight Initial Pretrial Conference... 5-6 Rule Nine Additional Pretrial Conferences/ Setting the Trial Date... 6-7 Rule Ten Discovery... 7 Rule Eleven Expert Discovery... 7 Rule Twelve Costs and Sanctions... 7
A Message to Our Readers Rebecca Love Kourlis Executive Director, IAALS Paul C. Saunders Chairperson, ACTL Task Force on Discovery and Civil Justice
21st Century Civil Justice System A Roadmap for Reform The nation s civil justice system is too expensive, too cumbersome and takes too long. As a result, the price of justice is high and access is being compromised. Small to mid-sized cases that should be filed are not filed because they fail a reasonable cost/benefit analysis; cases that are brought often settle principally because of costs, not merits. Civil jury trials are disappearing. The American College of Trial Lawyers (ACTL) and the Institute for the Advancement of the American Legal System (IAALS) are both dedicated to protecting and improving our civil justice system. In 2007, IAALS and the ACTL Task Force on Discovery and Civil Justice formed a partnership to study those problems. We reviewed existing research on the subject, then surveyed the membership of the ACTL. The results of that survey voiced a compelling mandate. Of the Fellows responding, 65% thought that the system fails to meet the guarantee of Rule 1 of the Federal Rules of Civil Procedure of a just, speedy and inexpensive determination of every action. The next step was to focus on possible solutions to the problems. In March 2009, we published a joint Final Report that contains 29 Principles. Those Principles suggest changes to the civil justice system that would address costs by simplifying and expediting the system. The Final Report can be found on both of our websites at www.actl. com and www.du.edu/legalinstitute. The Principles represent the best thinking of the individuals involved in our project, in collaboration with the broader membership of the ACTL and with experts across the nation. Nonetheless, we understand how important it is to test our proposed solutions before suggesting that they be widely implemented. Accordingly, it is our intention that the Principles be tested in pilot projects in courts around the country, with the projects monitored and measured to determine what works and what does not. In order to be able to apply the Principles in those pilot projects, we have undertaken the task of reducing them to operational Rules. We urge jurisdictions to use these Rules as a roadmap for consideration in creating and implementing a pilot project. IAALS has dedicated a portion of its website to these pilot projects (www.du.edu/legalinstitute/tcri2.html), and will be collecting information as we move forward. IAALS will also be developing metrics to gauge the impact of the pilot projects. The civil justice system is a centerpiece of American democracy. It is in need of improvement. We must refuse to settle for an ailing system that does not adequately meet the needs of litigants. Rather, we must begin to test possible solutions. Our organizations commit to serving as a resource for you in that important work. Rebecca Love Kourlis Paul C. Saunders 1
Pilot Project Rules Preamble These Pilot Project Rules (PPR) are meant to apply the Principles set forth in the Final Report on the Joint Project of the American College of Trial Lawyers Task Force on Discovery and the Institute for the Advancement of the American Legal System (ACTL/IAALS Principles).* They are not meant to be a complete set of rules. The court s existing rules will govern except to the extent that there is an inconsistency, in which case the PPR will take precedence. In addition, the PPR may need to be tailored to specific requirements in a jurisdiction. Furthermore, there may be certain kinds of cases to which the PPR should not apply because of statutory or constitutional requirements (for example, the requirements contained in the Private Securities Litigation Reform Act of 1995). * The name of the Task Force was subsequently revised to the Task Force on Discovery and Civil Justice to acknowledge that the problems we identified were not confined to discovery. Rule One Scope 1.1. These Rules govern the procedure in all actions that are part of the pilot project. They must be construed and administered to secure the just, timely, efficient, and cost-effective determination of such actions. 1.2. At all times, the court and the parties must address the action in ways designed to assure that the process and the costs are proportionate to the amount in controversy and the complexity and importance of the issues. The factors to be considered by the court in making a proportionality assessment include, without limitation: needs of the case, amount in controversy, parties resources, and complexity and importance of the issues at stake in the litigation. This proportionality rule is fully applicable to all discovery, including the discovery of electronically stored information. Comment to PPR 1.2 The Federal Rules of Civil Procedure and many state rules already contain factors that where applied address proportionality in discovery. However, these factors are rarely if ever applied because of the longstanding notion that parties are entitled to discover all facts, without limit, unless and until a court says otherwise. It is the purpose of these PPRs that the default be changed all facts are not necessarily subject to discovery. Because these rules reverse the default, the proportionality factors that are provided in existing rules and restated in the PPR can be applied more effectively to achieve the goals stated in PPR 1.1. 2
21st Century Civil Justice System A Roadmap for Reform Rule Two 2.1. The party that bears the burden of proof with respect to any claim or affirmative defense must plead with particularity all material facts that are known to that party that support that claim or affirmative defense and each remedy sought, including any known monetary damages. A material fact is one that is essential to the claim or defense and without which it could not be supported. As to facts that are pleaded on information and belief, the pleading party must set forth in detail the basis for the information and belief. 2.2. Any statement of fact that is not specifically denied in any responsive pleading is deemed admitted. General denials are not permitted and a denial that is based on the lack of knowledge or information must be so pleaded. Comment to PPR 2.1 Pleadings Form and Content PPR 2.1 expects that the pleading party will plead all material facts known to support a claim or affirmative defense. It is intended to revitalize the role that pleadings play in narrowing issues at the earliest stages of litigation, by bringing salient facts to light in the hope that doing so will reduce the need for discovery. PPR 2.1 is not intended to resuscitate the technicalities associated with commonlaw pleading or foreclose access to the courts. The material facts pleaded should provide the who, what, when, where, and how of each element of a claim or defense. Several examples follow. In a claim for breach of contract, the pleader should provide a description of the nature of the contract, identify the relevant signatories and date of signature, and for each provision alleged to be breached, state the provision and describe in detail the manner in which it was allegedly breached. In a claim for negligence arising from an automobile accident, the pleader should state in detail the time, date, and location of the accident, describe in detail the alleged negligent act, provide a precise description of the alleged physical injuries and property damage, and describe known monetary damages. In a claim for patent infringement, the pleader should provide facts identifying the patentee(s) and assignee(s), patent number, dates of application and issue, efforts to mark any products or processes covered by the patent, the specific products or processes that the defendants allegedly made, used or sold in violation of the patent, where and when those products or processes were made, used and sold within the United States, and the claims of the patent that are allegedly infringed. The pleading requirements apply equally to affirmative defenses. For example, for an affirmative defense alleging the running of the statute of limitations, the pleader should state which claims are time-barred and, for each such claim, the applicable statute of limitations and specific time that has elapsed since the claim accrued. If a pleading party cannot through due diligence obtain facts necessary to support one or more elements of the claim, the party may plead such facts on information and belief, again with as much detail as possible. However, this provision should not be used in a manner that evades the intent of the rule. Rather, the party should make use of the precomplaint discovery provision in PPR 3 to compile the facts to meet the burden. The requirement that parties plead each remedy sought is not intended to preclude alternative remedies at the outset, and required damages are only those damages that can be quantified at the time of filing of the action. 3
Pilot Project Rules Rule Three 3.1. On motion by a proposed plaintiff with notice to the proposed defendant and opportunity to be heard, a proposed plaintiff may obtain precomplaint discovery upon the court s determination, after hearing, that: a. the moving party cannot prepare a legally sufficient complaint in the absence of the information sought by the discovery; b. the moving party has probable cause to believe that the information sought by the discovery will enable preparation of a legally sufficient complaint; c. the moving party has probable cause to believe that the information sought is in the possession of the person or entity from which it is sought; d. the proposed discovery is narrowly tailored to minimize expense and inconvenience; and e. the moving party s need for the discovery outweighs the burden and expense to other persons and entities. 3.2. The court may grant a motion for precomplaint discovery directed to a nonparty pursuant to PPR 3.1. Advance notice to the nonparty is not required, but the nonparty s ability to file a motion to quash shall be preserved. 3.3 If the court grants a motion for precomplaint discovery, the court may impose limitations and conditions, including provisions for the allocation of costs and attorneys fees, on the scope and other terms of the discovery. Comment to PPR 3 Precomplaint Discovery The Federal Rules do not presently permit precomplaint discovery, but it is permitted in some states, either after an action has been commenced by writ of summons (e.g., P. R. C. P. 4003.8), or by a miscellaneous action brought for the sole purpose of seeking leave to conduct the discovery (e.g., O R. C 2317.48; N.Y. CPLR L 3102(c)). Rule Four Single Judge 4.1. As soon as a complaint is filed, a judge will be assigned to the case for all purposes, and, absent unavoidable or extraordinary circumstances, that judge will remain assigned to the case through trial and post-trial proceedings. It is expected that the judge to whom the case is assigned will handle all pretrial matters and will try the case. Rule Five Initial Disclosures 5.1. No later than (x) days after service of a pleading making a claim for relief, the pleading party must make available for inspection and copying all reasonably available documents and things that may be used to support that party s claims. 5.2. The date for each responsive pleading should be fixed to follow the due date of the applicable initial disclosures required by PPR 5.1 by (x) days. 5.3. No later than (x) days after service of a pleading defending against a claim for relief, the pleading party must make available for inspection and copying all reasonably available documents and things that may be used to support any defense of that party. 4
21st Century Civil Justice System A Roadmap for Reform 5.4. Each party has an ongoing duty to supplement the initial disclosures promptly upon becoming aware of the supplemental information. 5.5. A party that fails to comply with PPR 5.1, 5.3 or 5.4 may not use for any purpose the document or thing not produced, unless the court determines that the failure to disclose was substantially justified or was harmless. Comment to PPR 5 The ACTL/IAALS Principles suggest that the plaintiff should be required to produce such documents very shortly after the complaint is served and that the defendant (who, unlike the plaintiff, may not be presumed to have prepared for the litigation beforehand) be required to produce such documents within a somewhat longer period of time. However, court rules on timing vary so these rules have left the times to be determined by the pilot project court. See F R J P A C T L T F D I A A L S 8 (Mar. 11, 2009). Rule Six Motion to Dismiss/Stay of Discovery 6.1. Upon the making of a motion directed to the personal or subject matter jurisdiction of the court or the legal sufficiency of one or more claims for relief, made together with an answer or at the time within which an answer would otherwise be due, the court, at the request of the moving party based on good cause shown, may stay initial disclosures and discovery in appropriate cases for a period of up to 90 days. The motion must be decided within that 90 day period. Rule Seven 7.1. Promptly after litigation is commenced, the parties must meet and confer about preservation of any electronically stored information. In the absence of an agreement, any party may move for an order governing preservation of electronically stored information. Because the parties require a prompt response, the court must make an order governing preservation of electronically stored information as soon as possible. Rule Eight 8.1. Unless requested sooner by any party, the judge to whom the case has been assigned must hold an initial pretrial conference as soon as practicable after appearance of all parties. Each party s lead trial counsel must attend this conference. At least three days before the conference, the parties must submit a joint report setting forth their agreement or their respective positions on the following matters, if applicable: a. an assessment of the application to the case of the proportionality factors in PPR 1.2; b. production, continued preservation, and restoration of electronically stored information, including the form in which electronically stored information is to be produced and other issues relating to electronic information; c. proposed discovery and limitations on discovery, specifically discussing how the proposed discovery and limitations on discovery are consistent with the proportionality factors in PPR 1.2. Limitations on discovery may include: Preservation of Electronically Stored Information Initial Pretrial Conference 5
Pilot Project Rules i. limitations on scope of discovery; ii. limitations on persons from whom discovery can be sought; iii. limitations on the types of discovery; iv. limitations on the restoration of electronically stored information; v. numerical limitations; vi. elimination of depositions of experts when their testimony is strictly limited to the contents of their written report; vii. limitations on the time available for discovery; viii. cost shifting/co-pay rules, including the allocation of costs of the production of electronically stored information; ix. financial limitations; and x. discovery budgets that are approved by the clients and the court. d. proposed date for the completion of discovery; e. proposed date for disclosure of prospective trial witnesses; f. dispositive motions; g. the amount of time required for the completion of all pretrial activities and the approximate length of trial; h. the issues to be tried; n. computation of damages and the nature and timing of discovery relating to damages; and o. any other appropriate matter. 8.2. As soon as possible after that conference, the judge to whom the case is assigned must make an initial pretrial order with respect to each of the matters set forth above and set a trial date. The initial pretrial order must specifically include the court s own assessment of the applicability to the case of the proportionality factors in PPR 1.2. In arriving at that assessment, the court should consider, but is not bound by, the assessments made by the parties. Modifications to the initial pretrial order may be made only upon a showing of good cause. Except as otherwise provided by the PPR, continuances and stays must not be permitted. Comment to PPR 8.1 PPR 8.1(c)(viii) anticipates that the parties joint report may include an allocation of the costs of producing electronically stored information. Unless directed otherwise by an order of the court, the cost of preserving, collecting and producing electronically stored information must be borne by the producing party. The court shall consider shifting any or all costs associated with the preservation, collection and production of electronically stored information if the interests of justice and proportionality so require. i. the appropriateness of mediation or other alternative dispute resolution; j. sufficiency of pleadings and compliance with PPR 2; Rule Nine Additional Pretrial Conferences/ Setting the Trial Date k. amendment of pleadings; l. joinder of parties; m. expert witnesses, including dates for the exchange of expert reports; 9.1. A party may request a special conference with the court to seek guidance on or the modification or supplementation of the court s outstanding pretrial orders. 6
21st Century Civil Justice System A Roadmap for Reform 9.2. The court may hold additional status conferences on its own motion. 9.3. A conference may be held in person or by telephone or videoconference, at the court s discretion. 9.4. If not already set in the initial pretrial order, the court must set a trial date at the earliest practicable time, and that trial date must not be changed absent extraordinary circumstances. 11.2. Except in extraordinary cases, only one expert witness per party may be permitted to submit a report and testify with respect to any given issue. Comment to PPR 11 This rule is intended to apply to Federal Rule of Evidence 702 experts. It is not meant to address testimony of fact witnesses who, by virtue of their training and experience, would be qualified to express expert opinions but are not retained by any party for that purpose. Rule Ten Discovery 10.1. Discovery must be limited in accordance with the initial pretrial order. No other discovery will be permitted absent further court order based on a showing of good cause and proportionality. 10.2. Discovery must be limited to matters that would enable a party to prove or disprove a claim or defense or to impeach a witness and must comport with the factors of proportionality in PPR 1.2, including the importance of the proposed discovery in resolving the issues, total costs and burdens of discovery compared to the amount in controversy, and total costs and burdens of discovery compared to the resources of each party. Rule Twelve Costs and Sanctions 12.1. The court may impose sanctions in addition to those set forth in PPR 5.5, as appropriate for any failure to provide or for unnecessary delay in providing required disclosures or discovery. 12.2. Sanctions may be imposed for destruction or failure to preserve electronically stored information only upon a showing of intent to destroy evidence or recklessness. Rule Eleven Expert Discovery 11.1. Each expert must furnish a written report setting forth his or her opinions, and the reasons for them, and the expert s direct testimony will be strictly limited to the contents of the report. There must be no additional discovery of expert witnesses except as provided by the initial pretrial order. 7
American College of Trial Lawyers 19900 MacArthur Boulevard, Suite 610 Irvine, California 92612 www.actl.com 949.752-1801 Institute for the Advancement of the American Legal System University of Denver 2044 E. Evans Avenue, HRTM Bldg., #307 Denver, CO 80208-2101 Phone: 303.871.6600 www.du.edu/legalinstitute
21st Century Civil Justice System A Roadmap for Reform Civil Caseflow Management Guidelines
21st Century Civil Justice System: A Roadmap for Reform Civil Caseflow Management Guidelines Institute for the Advancement of the American Legal System at the University of Denver
Institute for the Advancement of the American Legal System The Institute for the Advancement of the American Legal System (IAALS) is a national, non-partisan organization dedicated to improving the process and culture of the civil justice system. Executive Director and former Colorado Supreme Court Justice Rebecca Love Kourlis leads a staff distinguished not only by their expertise but also by their diversity of ideas, backgrounds and beliefs. IAALS provides principled leadership, conducts comprehensive and objective research and develops innovative and practical solutions all focused on serving the individuals and organizations who rely on the system to clarify rights and resolve disputes. IAALS is a part of the University of Denver, and it benefits from gifts donated to the University for its use. None of the gifts have conditions or requirements, other than accounting and fiduciary responsibility. All IAALS research and products are supported by pooled grants from individuals, businesses and private foundations. Institute for the Advancement of the American Legal System University of Denver 2044 E. Evans Avenue, HRTM Bldg., #307 Denver, CO 80208-2101 Phone: 303.871.6600 www.du.edu/legalinstitute INSTITUTE FOR THE ADVANCEMENT OF THE AMERICAN LEGAL SYSTEM STAFF Rebecca Love Kourlis, Executive Director Pamela A. Gagel, Assistant Director Jordan M. Singer, Director of Research Michael Buchanan, Research Analyst Corina Gerety, Research Analyst Natalie Knowlton, Research Analyst Dallas Jamison, Director of Marketing & Communications Erin Harvey, Manager of Marketing & Communications Abigail McLane, Executive Assistant Stephen Ehrlich, Consultant Suzanne Gremaux, Consultant E. Osborne Ayscue, Jr., Charlotte, North Carolina, a member of the IAALS Board of Advisors and a Fellow of the American College of Trial Lawyers participated as the Institute s liaison to the project. For reprint permission please contact IAALS. Copyright 2009 Institute for the Advancement of the American Legal System. All rights reserved.
Contents Executive Summary... 2-5 Civil Caseflow Management Guidelines Guideline One... 6-7 Guideline Two... 8-9 Guideline Three... 10 Guideline Four...11 Guideline Five... 12 Guideline Six...13 Guideline Seven... 12-13 Guideline Eight...14-15 Guideline Nine... 18 Notes... 19
2 Executive Summary
21st Century Civil Justice System A Roadmap for Reform Excessive litigation costs and delay (separate but closely interrelated concerns) are two of the most serious problems in the civil justice system. These problems not only plague litigants whose cases do get into court, but also negatively affect access to justice, not just for the indigent, 1 but perhaps even for the middle class. 2 These concerns can be addressed meaningfully through caseflow management practices. Effective caseflow management involves much more than reducing time to disposition; it involves timeliness throughout the life of the case. According to Maureen Solomon and Douglas Somerlot, [i]n a sense, the term caseflow may be misleading in connection with the movement of cases through the court. Cases do not flow steadily and smoothly from filing to termination. In terms of court involvement, the life of a case, and reality, may be characterized as a series of events separated by times during which there is no court activity. A goal of active case management is to make the sequence and timing of these events more predictable and timely. 3 Another goal of caseflow management is to ensure that each event is meaningful, in that the activity and preparation required for the event to take place on the scheduled date is completed before that date by all involved stakeholders. 4 A corollary goal is to assure that effort is not duplicated. When the parties, counsel and the court prepare for an event, that event should occur. Otherwise, the preparation will have to be repeated. Additionally, the event itself should advance the resolution of the case in some way. The Guidelines that follow were drawn from a number of sources, including the Interim 5 and Final 6 Reports of the American College of Trial Lawyers (ACTL) and the Institute for the Advancement of the American Legal System 3
Executive Summary (IAALS), and a recent and extensive IAALS civil case processing study. 7 These Guidelines and the discussion of specific suggestions for applying the Guidelines are designed to assist judges in effectively managing the flow of civil cases to ensure that all events in the life of a case are timely and meaningful. 8 The Discussion of the Caseflow Management Guidelines contains the following sections: Guideline, Basis and Background, Operational Protocols and Cross- References. The Guidelines are recommendations that are intended for the majority of cases. They are not intended to be adhered to in every instance and judges who are actively involved in case management are in the best position to determine the applicability of each Guideline, based on the specific needs of the case. Each Guideline is accompanied by a Basis and Background section that explains the rationale behind the Guideline and the benefits that flow from the caseflow manage- ment practice set forth in the Guideline. Where applicable, the Basis and Background section references support from the specific sources listed above. The Operational Protocols accompanying the Guidelines are intended to breathe life into the Guidelines. The Protocols are recommended practices and procedures that will assist judges in implementing the Guidelines. As is true with the Guidelines, not all of the Operational Protocols will be applicable to every case and judges exercising active caseflow management will be best positioned to determine which Protocols should be adopted in each case. These Guidelines were developed from the Principles set forth in the ACTL/IAALS Final Report, and are intended to supplement the ACTL/IAALS Pilot Project Rules (PPR). In order to facilitate the implementation of these Caseflow Management Guidelines, each Guideline is also accompanied by a Cross-Reference section to the PPR and, where applicable, the Interim or Final Report. 4
21st Century Civil Justice System A Roadmap for Reform Guideline One Caseflow management should be tailored to the specific circumstances of the case and the parties. Judges should manage civil cases so as to ensure that the overall volume and type of discovery and pretrial events are proportionate and appropriate to the specific circumstances of the case. Guideline Two Judicial involvement in the management of litigation should begin at an early stage of the litigation and should be ongoing. A single judge should be assigned to each case at the beginning of litigation and should stay with the case through its disposition. Guideline Three Judges should be consistent in the application and enforcement of procedural rules and pretrial procedures, particularly within the same types of cases, and within the same courts. Guideline Four Unless requested sooner by any party, the court should set an initial pretrial conference as soon as practicable after appearance of all parties. Guideline Five Additional pretrial conferences should be held on request by one or more parties or on the court s own initiative. Guideline Six In the initial pretrial order, or at the earliest practicable time thereafter, the court should set a trial date, and this date should not be changed absent extraordinary circumstances. Guideline Seven Judges should play an active role in supervising the discovery process and should work to assure that the discovery costs are proportional to the dispute. Guideline Eight Judges should rule promptly on all motions. Guideline Nine When appropriate, the court should raise the possibility of mediation or other form of alternative dispute resolution early in the case. The court should have the discretion to order mediation or other form of alternative dispute resolution at the appropriate time, unless all parties agree otherwise. 5
Civil Caseflow Management Guidelines Guideline One Caseflow management should be tailored to the specific circumstances of the case and the parties. Judges should manage civil cases so as to ensure that the overall volume and type of discovery and pretrial events are proportionate and appropriate to the specific circumstances of the case. 6 Basis and Background Just as not all cases require the full range of pretrial procedures provided for under the rules, not all cases require the same expenditure of judicial time and resources. Treating all cases in the same way results in under-management of some cases, over-management of others, and in both situations increased costs or delay, or both. Under-management can result in expensive and disputed discovery and may complicate pretrial processes, as issues may not be adequately narrowed. Problems, disputes, and motions may go unaddressed, protracting the dispute and the cost and time associated with resolving it. Over-management can impose unnecessary procedures and requirements on cases that do not require them, burdening parties and increasing cost and delay. Furthermore, over-managing cases takes judicial resources away from those cases that do require more attention. Comments from the ACTL Survey highlighted the tension between too much judicial involvement and too little, and indicated frustration where judges imposed needless conferences and procedures that only waste time and resources. Although it is sometimes difficult to determine exactly where the middle ground lies, the general theme that emerged from the Survey comments was a desire for meaningful judicial intervention. Differentiated case management (DCM) is one of the basic methods used by those courts identified as having successful caseflow management programs. This approach permits a preliminary assessment at the outset as to how much judicial attention a case may require and enables courts to prioritize those cases that might require more judicial attention. A DCM system can automate the screening process so that judicial time and resources are spent re-allocating the limited number of cases that require it, rather than individually screening the caseflow management needs of every case at the outset. The Federal Rules of Civil Procedure and their state analogs were designed to be transsubstantive or one size fits all, offering the full range of procedures for all cases, regardless of case type, amount in controversy, or complexity of the case. However, in many cases, the full panoply of pretrial rules and procedures is not appropriate and only leads to increased costs and delay. Over the years, courts have realized this and have informally developed special rules and procedures for certain types of cases. This is not to say that individual courts should tailor their own rules. That process is confusing and highly inefficient. Rather, this Guideline supports a single system of civil procedural rules designed for the majority of cases while recognizing that the one size fits all approach is not the most effective approach for all types of cases. Results from the ACTL Survey suggest that the process is bloated and has no scaleddown version for cases demanding less expenditure. The effect on access to the courts is pronounced; some deserving cases are not brought because the cost of pursuing
21st Century Civil Justice System A Roadmap for Reform them fails a rational cost-benefit test, while other cases in the system that should be fully litigated are settled rather than tried because the trial process costs too much. Effective caseflow management can identify unnecessary events and requirements (based on the specific circumstances of each case), ensuring that inefficiencies in the process which lead to cost and delay are minimized. To this end, proportionality should be the most important principle applied to all discovery. Discovery is not the purpose of litigation. It is merely a means to an end. Discovery should promote the just, speedy, and inexpensive determination of actions and should be conducted in the most efficient, nonredundant, cost-effective method available to procure evidence directly relevant to the claims and defenses asserted in the pleadings. Operational Protocols Most cases will not require intensive judicial involvement, and judges should assess each case as soon after filing as possible to determine the needs of the case and the expected degree of involvement required. In assessing the degree of involvement required for a case, judges should consider: the number of parties, including the number of separately represented parties; number of motions anticipated; amount of expected discovery; amount in controversy; complexity of the legal issues presented; disproportionate resources available to one party over the other; and any other factors that would suggest a need for more intensive management. 9 Judges should develop a differentiated case management system that includes simplified procedure for some cases and more intricate procedure for other kinds of cases. The system should consider categorizing cases by type in a way that would presume a certain level of judicial involvement for certain types of cases. The system might also include specific timelines for each track. 10 When determining the caseflow management needs of each case, judges may need to consider the experience and professionalism of counsel. Judges should ensure that the procedural requirements and costs imposed on the parties are consistent with the following proportionality factors: needs of the case, amount in controversy, parties resources, and complexity and importance of the issues at stake in the litigation. Judges should encourage parties to agree on appropriate levels and methods of discovery at the outset of the case, and where agreement fails the court should tailor discovery orders according to the principle of proportionality. Judges should be particularly mindful of proportionality with respect to the discovery of electronically stored information (ESI), taking into account the nature and scope of the case, relevance, importance to the court s adjudication, and expense and burden of retrieving and reviewing the ESI, both for the producing party and for the receiving party. Cross References ACTL/IAALS Pilot Project Rules: PPR 1.2 (Scope) PPR 8 (Initial Pretrial Conference) PPR 10.2 (Discovery) ACTL/IAALS Principles 7
Civil Caseflow Management Guidelines Guideline Two Judicial involvement in the management of litigation should begin at an early stage of the litigation and should be ongoing. A single judge should be assigned to each case at the beginning of litigation and should stay with the case through its disposition. Basis and Background Early involvement familiarizes the judge with more than just the facts and issues in the case; it also helps the judge become familiar with the parties unique motivations, goals, and circumstances characteristics that play a large part in determining the course and tone of the litigation. By becoming familiar with the case at an early stage, a judge can help the parties identify and narrow the issues, thereby narrowing the focus and scope of discovery to save the parties time and money. The judge can also gain an understanding of some of the areas of conflict that may arise in the future. Early judicial involvement can reduce the parties pretrial costs, as identifying and narrowing the issues in dispute focuses discovery and can prevent future discovery disputes. When disputes arise, ongoing judicial involvement can prevent them from becoming protracted a situation that adds significantly to the total costs of litigation. Judicial involvement early in the process can achieve earlier nontrial dispositions for example, through dismissal or default at the case initiation stage, through a facilitated settlement at case screening, or through scheduling orders and case management plans that enable counsel to consider the merits of their case and focus their efforts on the issues in dispute. Because a significant majority of cases are disposed of before trial, reaching a nontrial disposition as early in the life of a case as possible can reduce discovery, litigation time, and overall cost. Early and ongoing control of case progress has been identified as one of the core features common to those courts that successfully manage the pace of litigation. Active court control, which includes scheduling, setting and adhering to deadlines, and imposing sanctions for failure to comply with deadlines, can ensure that each scheduled event causes the next scheduled event to occur, thereby ensuring that every case has no unreasonable interruption in its procedural progress. The use of a single judge assigned to a case from beginning to end provides the parties in the litigation with a sense of continuity. With respect to discovery issues and disputes, the same judge who handles the pretrial and trial matters is in a better position to resolve discovery matters because of his or her familiarity with the issues, 8
21st Century Civil Justice System A Roadmap for Reform the parties, the history of the case, and the relationship between the parties. For cases that go to trial, the judge who handled all pretrial and discovery matters in a case is in a better position to try the case, based on a familiarity with the issues, the parties, and the history of the case. Understanding the parties and the case in this light enables a judge to truly tailor caseflow management to the specific needs of the parties and the case. This practice can also maximize judicial resources by minimizing duplication of work effort. For example, assigning a discovery dispute to a judge other than the judge handling general pretrial matters forces that judge to take the time to familiarize himself or herself with the same matter an inefficient use of court resources. A similar redundancy results when the judge hearing the case at trial is different from the judge who handled the pretrial matters. Operational Protocols A judge should assess each case as soon after filing as possible, in order to determine its caseflow management needs. Judges should become familiar with the issues in the case at an early stage in order to set realistic timelines and anticipate special needs and problems. A judge should make himself or herself available to parties and counsel to encourage informal ways of resolving disputes. Judges should routinely monitor the progress of the case in order to determine whether caseflow management needs have changed. All aspects of a case should be handled by one judge. A court s differentiated case management system should preserve judicial resources for the cases that need attention. Because the time and resources required of judicial officers will be minimal in many cases, the assignment of a single judge to every case should be feasible, even where judicial resources are not optimal. Cross References ACTL/IAALS Pilot Project Rules: PPR 4 (Single Judge) ACTL/IAALS Principles 9
Civil Caseflow Management Guidelines Guideline Three Judges should be consistent in the application and enforcement of procedural rules and pretrial procedures, particularly within the same types of cases, and within the same courts. Basis and Background Where rules and procedures are consistently applied and enforced, lawyers know what to expect from the court and know what the court expects of them. Consistent application and enforcement of rules and procedures creates a culture and practice in which meaningful events occur as scheduled, and preparation and compliance are promoted. Policies of no continuances, extensions, or adjournments absent extraordinary circumstances create this culture. That culture moves a case toward timely and cost-effective resolution. While local rules can be a useful mechanism through which a jurisdiction can experiment with new rules and procedures, in many federal district courts the local rules are accompanied by an additional set of rules specific to each judge. These rules result in confusion, unnecessary expenditure of time, and unpredictability. Operational Protocols Judges should consistently apply and enforce rules and procedures both within a single courtroom and within judicial districts. Courtroom-bycourtroom rules or procedures impede efficiency and create a patchwork legal culture. Judges should use consistent application and enforcement of rules and procedures to foster a legal culture that accepts efficient case processing as the norm. Judges should consistently apply and enforce deadlines. If the case requires a deviation from normal deadlines (such as staying discovery pending resolution of a motion to dismiss or staying the proceedings when parties agree to alternative dispute resolution), those expectations should be set out as early as possible and enforced. Cross Reference ACTL/IAALS Interim Report 10
21st Century Civil Justice System A Roadmap for Reform Guideline Four Unless requested sooner by any party, the court should set an initial pretrial conference as soon as practicable after appearance of all parties. Basis and Background An initial pretrial conference can provide an important opportunity for the judge and the parties to flesh out the facts and issues in dispute, discuss the scope of permissible discovery, address anticipated motion practice, and determine how much judicial attention a case may require. During the initial pretrial conference, the judge can also set forth his or her expectations of the parties and their obligations to the court. This can be instrumental in fostering an expectation among the parties that scheduled events will occur and continuances will not be granted absent extraordinary circumstances. Initial pretrial conferences also provide an opportunity to foster cooperation between the parties at an early stage in the litigation, which can reduce costs and increase the efficiency and speed with which the case is resolved. Operational Protocols In order to make the best use of the initial pretrial conference, the judge should be as familiar as possible with the issues in the case and the parties potential discovery needs before the conference. Each party s lead trial counsel should attend the initial pretrial conference. At the initial pretrial conference, the judge should meet with counsel and (where appropriate) the parties, to attempt to narrow the issues in the case, explore discovery needs and (where appropriate) set firm dates for the close of discovery, discuss the filing of dispositive motions, and set a trial date. At the initial pretrial conference, or before the initial pretrial conference when requested by the parties, the judge and the parties should discuss the manner in which electronically stored information is stored and preserved. When the parties cannot agree, the court should issue an order governing electronic discovery that specifies which electronically stored information should be preserved and addresses the scope of allowable electronic discovery and allocation of cost among parties. Cross References ACTL/IAALS Pilot Project Rules: PPR 8.1 (Initial Pretrial Conference) ACTL/IAALS Principles 11
Civil Caseflow Management Guidelines Guideline Five Additional pretrial conferences should be held on request by one or more parties or on the court s own initiative. Basis and Background In some cases, additional pretrial conferences or discovery conferences are a useful means of updating the court and parties on the progress of the case, resolving disputes, and assessing deadlines and timeframes. Conferences also provide the parties with an opportunity for face-to-face discussion and cooperation. However, their benefit must be weighed against the costs associated with attending conferences and available court resources. Operational Protocols The judge should be mindful of the cost and expense to parties of multiple conferences and schedule them only when necessary and appropriate to the individual case. The judge should resolve all pending issues at a scheduled status conference. The judge should avoid taking issues under advisement whenever possible, because doing so inevitably protracts the litigation. Cross References ACTL/IAALS Pilot Project Rules: PPR 9.1 and 9.2 (Additional Pretrial Conferences/Setting the Trial Date) ACTL/IAALS Principles 12
21st Century Civil Justice System A Roadmap for Reform Guideline Six In the initial pretrial order, or at the earliest practicable time thereafter, the court should set a trial date, and this date should not be changed absent extraordinary circumstances. Basis and Background Where the parties are given a trial date at an early stage and made to understand that the date will be firmly adhered to, they are able to plan and prepare for each stage of the litigation process. The IAALS case processing study found a fairly strong correlation almost the strongest observed anywhere in the study between the elapsed time from case filing to the setting of a trial date and the overall length of the case. Cases in which the trial date was set early in the litigation process tended to terminate earlier than cases in which the trial date was set later in the litigation process, regardless of whether the case actually went to trial. The study noted that the key to avoiding unnecessarily lengthy times to disposition appears to be keeping the trial date firm. While it is somewhat unclear exactly what point in the case constitutes early, this timing should be considered in the initial evaluation of the case. Firm and credible trial dates are another core feature of courts with successful caseflow management programs. The importance of this practice lies in fostering the expectation that events will occur as scheduled. Where such an expectation has been established, parties will prepare accordingly either to be ready for trial or settlement. In order to ensure a firm trial date, it is important that courts adopt a firm policy and apply it consistently for granting continuances. Where continuances are granted too liberally, the expectation that events will occur as scheduled and the corresponding effect on attorneys expectations become illusory. Operational Protocols A judge should set a realistic and firm trial date at the initial pretrial conference or shortly thereafter. The judge should maintain this date except in extraordinary circumstances. In order to ensure that the date is realistic, before setting the trial date the judge should seek to understand the issues in the case and the appropriate scope and length of the discovery process. Cross References ACTL/IAALS Pilot Project Rules: PPR 9.4 (Additional Pretrial Conferences/Setting the Trial Date) ACTL/IAALS Principles 13
Civil Caseflow Management Guidelines Guideline Seven Judges should play an active role in supervising the discovery process and should work to assure that the discovery costs are proportional to the dispute. Basis and Background Discovery can be one of the most costly aspects of the pretrial process, and cases involving extensive discovery often proceed more slowly than those involving little to no discovery. Because the potential for unnecessary cost and delay is so high, judicial supervision is crucial. The discovery period is often the point in the pretrial process at which most of the disputes arise, and motion practice associated with resolving discovery disputes can take a significant amount of court time and resources. Early and active involvement in the discovery process can reduce the frequency of these disputes, as issues and areas of potential disagreement can be identified and either addressed ahead of time or anticipated and factored into caseflow management needs. Cooperation between counsel can greatly reduce the cost and time associated with discovery; however, where counsel are generally uncooperative, active court involvement in enforcing discovery rules and agreements, and sanctioning noncompliance, can keep the process from becoming disproportionately costly and drawn out. Even when parties agree on the scope of discovery, their agreement may not be representative of the most cost-effective and proportionate approach. Active court involvement in managing the discovery process can ensure that when parties reach an agreement on discovery, or when parties stipulate around imposed discovery limits, these agreements are not imposing unreasonable cost and delay on the client. Most cases do not require much discovery; however, many lawyers are hesitant to limit the scope and tools of discovery on their own accord, based in part on fears of malpractice claims. Court-imposed limits on discovery provide lawyers with the cover they need to practice limited discovery. 14
21st Century Civil Justice System A Roadmap for Reform Operational Protocols The judge should actively monitor the discovery process and should review party agreements on discovery matters. Where the parties agreement is not conducive to a just, speedy and inexpensive resolution of the dispute, or is otherwise inappropriate in scope, volume, or methods to be employed, the judge may refuse to accept it in whole or in part. The judge has an important oversight role in making certain that everyone understands the implications of their agreement. The judge should consider requiring periodic reports from the parties on the progress of discovery. Where appropriate, the judge should consider financial restrictions on discovery, cost shifting, or co-pay rules, including cost allocation for the production of electronically stored information. Judges should enforce the defined default limits for discovery and should not permit additional discovery absent good cause and a showing of proportionality. Where any disputed issues require expert testimony, the judge should consider a court-appointed expert or require a joint expert agreed to by the parties. Cross References ACTL/IAALS Pilot Project Rules: PPR 1.2 (Scope) PPR 6 (Motion to Dismiss/Stay of Discovery) PPR 8.1 (Initial Pretrial Conference) PPR 11.2 (Expert Discovery) PPR 12 (Costs and Sanctions) ACTL/IAALS Principles 15
Civil Caseflow Management Guidelines Guideline Eight Judges should rule promptly on all motions. Basis and Background Delay in ruling on motions can result in significant cost. For example, when a dispositive motion is pending, the parties must continue preparing their case in order to meet pretrial deadlines in the event the motion is denied. When the outcome of the motion is such that the case in whole or in part is terminated, the parties will have had significant preparation costs that were needlessly incurred. When discovery motions languish, the discovery process is interrupted, and that also forestalls progress of the case. A significant amount of motion practice can be generated during the discovery process, and in order to move the case forward, prompt rulings on these motions are important. Courts can minimize the costs imposed on both the parties and the court and maximize efficiency in dealing with these motions by encouraging informal methods of resolving disputes and deciding motions. Prompt ruling on dispositive motions is also important even when the motion will ultimately be denied as parties often make settlement decisions based on a ruling with respect to dispositive motions. The IAALS case processing study found that cases often proceed toward a quick settlement after a dispositive motion is denied. Of the 743 cases where a motion for summary judgment was denied in its entirety, 24.2 percent still terminated within 30 days of the ruling, and nearly 40 percent terminated within 90 days of the ruling. Of the 396 summary judgment motions that were granted only in part, 15.4 percent still terminated within 30 days after the ruling, and 33.6 percent terminated within 90 days of the ruling. The study concludes that in some percentage of cases, parties making summary judgment motions look to the court to provide answers that affect settlement decisions. 16
21st Century Civil Justice System A Roadmap for Reform Operational Protocols Judges should discuss potential dispositive motions at the initial pretrial conference. Judges should consider staying discovery where appropriate until resolution of a motion to dismiss. Early in the pretrial process, the judge should set a firm date for the filing of dispositive motions and should maintain this date except in extraordinary circumstances. Judges should consider requiring opposing counsel to meet and confer in good faith before filing motions. Judges should rule expeditiously on motions. If the judge decides to hold a hearing on the motion either telephonic or in open court that hearing should occur as soon as possible. Whether the motion is granted or denied, the ruling advances the case. Judges should make themselves available for informal resolution of motions, for example by being available to counsel by telephone before the filing of any motions. Cross References ACTL/IAALS Pilot Project Rules: Rule 6 (Motion to Dismiss/Stay of Discovery) Rule 8 (Initial Pretrial Conference) ACTL/IAALS Principles 17
Civil Caseflow Management Guidelines Guideline Nine When appropriate, the court should raise the possibility of mediation or other form of alternative dispute resolution early in the case. The court should have the discretion to order mediation or other form of alternative dispute resolution at the appropriate time, unless all parties agree otherwise. Basis and Background The growing preference for alternative dispute resolution (ADR) mechanisms to resolve legal disputes may be the result of a number of factors. The growth may reflect the efficiency and effectiveness of these mechanisms or could be a reflection of the increasing delay and inefficiency encountered in the judicial process. It could also be a means through which parties avoid costly discovery. Whatever the reason, the reality is that an increasing number of parties opt for ADR as opposed to judicial trials, and judges should consider the possibility of ADR when assessing caseflow management needs. While a judge should raise the possibility of ADR early, so as to avoid the unnecessary expenditure of parties time and money, the judge should also consider the appropriate timing of ADR in the individual case. Scheduling mediation or another form of ADR before the case is postured for meaningful discussion may be counterproductive and increase costs and delay. Operational Protocols The judge should explore the possibilities for ADR at the initial pretrial conference. However, it is critical that the judge not create the impression that settlement is expected or demanded. Trial does not represent a failure of the system. The judge should ensure that ADR mechanisms are available after the parties have provided sufficient disclosures to fully understand the issues in dispute but before the parties have incurred significant costs for discovery and trial preparation. When parties agree to ADR, the judge should consider staying the underlying proceeding for a reasonable period of time. Where appropriate, judges should consider mediation of issues, as opposed to the entire case. Cross References ACTL/IAALS Pilot Project Rules: Rule 8.1 (Initial Pretrial Conference) 18 ACTL/IAALS Principles
21st Century Civil Justice System A Roadmap for Reform Notes 1. A 2005 study conducted by the Legal Services Corporation (LSC) found that for every individual served by LSC, at least one individual seeking assistance was turned away because of a lack of available program resources. The study estimated that in 2005, LSC-funded programs would have been unable to serve approximately one million people seeking legal help. 2. Results of the ACTL Fellows Survey show that the median monetary amount below which respondents believed it was not cost-effective to handle a case and below which firms routinely turn a case away is $100,000. See, e.g., J P A C T L T F D I A A L S, I R 2008 L S F A C T L app. B, at B-1 (2008). 3. M S D S, C M T C : N F 3 (1987). 4. Giuseppe M. Fazari, Caseflow Management: A Review of the Literature, 24 CT. M 48, 49 (2009). 5. I R, supra note 2. 6. J P A C T L T F D I A A L S, F R (Mar. 11, 2009). 7. I A A L S, C C P F D C : A 21 C A (2009). 8. These Caseflow Management Guidelines use the term judges broadly; however, we recognize that certain Guidelines and related protocols may involve court personnel other than the judge. 9. A review of complex civil litigation rules in Arizona, California, Connecticut, Florida and Pennsylvania showed that these were among the most commonly recommended factors that judges are to consider when deciding whether a case is complex. 10. See, e.g., E.D. Mo. R. 5.01 (2009). 19
Institute for the Advancement of the American Legal System University of Denver 2044 E. Evans Avenue, HRTM Bldg., #307 Denver, CO 80208-2101 Phone: 303.871.6600 www.du.edu/legalinstitute
Legal Connect: Giving Back and Making Connections Ever wondered how to get involved? Want to make the most of your law degree and network with your colleagues on and off the bench while making a difference? Want to do pro bono work but afraid of it all being divorce work? Just want to take part and meet new people? Then join the Access to Justice Committee of the Weld County Bar Association, the 19th Judicial District and Weld County Legal Services for Legal Connect. FREE FOOD! The Access to Justice Committee has several projects in the works that need your ingenuity, energy, and creativity! Current projects include creating You Tube informational videos to help pro se parties through all aspects of the court system, from civil money cases to protection orders. Mediation programs in District Court and post-decree matters in family court are in the works modeled after the existing small claims court program. These are and will be great ways to gain valuable experience in mediation both as a participant and a mediator and provide an easy and first-hand way to give back to the community. The A2J is also looking at establishing a legal services hotline. Legal Connect will explore all of the ways to get involved and give back. You won t want to miss this unique opportunity to see how you can help, get information about what the A2J is working on, mingle with your colleagues and local judges, and enjoy some free food and beverage. Watch your email for further details. Legal Connect will take place in January 2011. For more information or to get involved now, email Jennifer Peters at jlpeters@nocolegal.com.
Seventh Annual 19 th Judicial District Bench-Bar Committee Nuts & Bolts CLE Presents ETHICS December 10, 2010 Presented by: Honorable John Jostad, District Court Magistrate
7th Annual Nuts Bolts CLE List of Attendees Lst Name First Name Company Name Street Address City State Zip Phone Email Address Adams Mark Adams Law 217 West Olive Street Fort Collins Colorado 80521 970.492-0222 MAdamsLaw@comcast.net Antommaria Amy Antommaria & Sledge, LLC 1029 14th Street Greeley Colorado 80631 970.346.8888 amy@antommariaandsledge.com Aquino Jerome R. Robert F. Pribila, P.C. 628 N. Weber St. Colorado Springs Colorado 80903 719.473.1238 jaquino@pribila.com Arries William n/a 1035 37th Ave Court Greeley Colorado 80634 970.352.8558 williamarries@aol.com Aurzada Stacey City of Greeley- City Attorney's Office 1100 10th Street Greeley Colorado 80631 970.350-9757 stacey.aurzada@greeleygov.com Barry John J. Witwer Oldenburg Barry & Johnson, LLP 822 7th St., Ste 760 Greeley Colorado 80631 970.352.3161 jbarry@wobjlaw.com Berndt Annie Professional Finance Company, Inc. 5754 West 11th Street, Suite 100 Greeley Colorado 80634 970.352.5000 aberndt@pfccollects.com Berry Josh Pryor Johnson Carney Karr Nixon 5619 DTC Parkway, Suite 1200 Greenwood Village Colorado 80204 303.773.3500 jberry@pjckn.com Bilewski Ben Grant, Hoffman & Kamada, PC 821 9th Street Greeley Colorado 80631 970.356.5666 bbilewski@greeleyattorneys.com Brady Rick City Attorney 1100 10th Street Greeley Colorado 80631 970.350-9757 rick.brady@greeleygov.com Bramer James Swift and Bramer, LLP 1230 West Ash Street, Suite C Milliken Colorado 80543 970.460.0266 jbramer@swiftbramerlaw.com Briggs John Robert Ray Law Office 909 11th Ave Greeley Colorado 80631 970.351.6083 jbriggslaw@gmail.com Choate Bob City of Greeley- City Attorney's Office 1100 10th Street Greeley Colorado 80631 970.350-9757 bob-choate@greeleygov.com Christiansen Dina Wabeke, Brummet, Johnson & Christiansen 325 E. 7th Street Loveland Colorado 80537 970.667.2131 dinajc919@comcast.net Condon Bill Bill Condon Law 1122 9th Street Greeley Colorado 80634 970.353.6886 Crosier William Crosier Law wcrosier@qwest.net Farrer Paul Springman, Braden, Wilson & Pontius, P.C. 1022 Bannock Street Denver Colorado 80204 970.481.8362 pfarrer@sbwp-law.com Gookin Jill Gookin Law, LLC. 1635 Foxtrail Drive, #332 Loveland Colorado 80538 970.988.0473 jill@gookinlaw.com Grant Tom Grant, Hoffman & Kamada, PC 821 9th Street Greeley Colorado 80631 970.356.7305 tgrant@greeleyattorneys.com Green Gordon City of Greeley- City Attorney's Office 1100 10th Street Greeley Colorado 80631 970.350-9757 Gordon.Green@greeleygov.com Grundy Erin Adams County Justice Center, Division C 1100 Judicial Center Drive Brighton Colorado 80601 303.654.3524 erin.grundy@judicial.state.co.us Gustafson James A. James A. Gustafson, Attorney and Counselor of Law 1010 ninth Ave Greeley Colorado 80631 970.356.8200 jamesagus@aol.com Hall Andrew Michael Unemployed 12340 Viewpoint Dr. Golden Colorado 80401 720.934.2256 ahall10@law.du.edu Harbour Lisa Grant, Hoffman & Kamada, PC 821 9th Street Greeley Colorado 80631 970.356.5666 Lharbour@greeleyattorneys.com Hause Troy W. W. Troy Hause Attorney at Law 710 11th Ave. Suite 205 Greeley Colorado 80631 970.351.6711 thause@aol.com Herrera Robert J. Hagen & Melusky Law Offices 1613 Pelican Lakes Point, Ste B Windsor Colorado 80550 970.686.6618 robert@h-mlegal.com Hinze Chrysten Lind & Ottenhoff 355 Eastman Park Drive Windsor Colorado 80550 970.674.9888 chrys@lolaw.us Hirsch Brandon Collins, Liu & Lyons L.L.P. 812 8th Street Plaza Greeley Colorado 80631 970.336.6499 brandon@cotriallaw.com Hoffman Brad Grant, Hoffman & Kamada, PC 821 9th Street Greeley Colorado 80631 970.356.5666 bhoffman@greeleyattorneys.com Holburn Kate Sabott n/a 2600 S. Rock Creek Parkway 33-101 Superior Colorado 80027 303.818.8517 kholburn@gmail.com Kamada Ryan Grant, Hoffman & Kamada, PC 821 9th Street Greeley Colorado 80631 970.356.5666 rkamada@greeleyattorneys.com Kobayashi Maile Grant, Hoffman & Kamada, PC 821 9th Street Greeley Colorado 80631 970.356.5666 mkobayashi@greeleyattorneys.com Kohn Adria S. n/a 490 Cottonwood Court Broomfield Colorado 80020 303.523.6294 AdriaKohn@comcast.net Krenning Troy D. Law Office of Troy D. Kenning, LLC 2908 Bent Drive Loveland Colorado 80538 970.449.4301 troydklaw@msn.com Kunimoto Katherine n/a 1449 Wynkoop Street, #201 Denver Colorado 80202 808.352.8546 katiekuni@yahoo.com Lamborne Sarah n/a 1131C Monroe Drive Boulder Colorado 80303 248.872.7681 sarah.lamborne@colorado.edu Larkin Reagan Colorado Legal Services 1200 Emerson Street, #203 Denver Colorado 80218 312.371.0828 reagancwlarkin@gmail.com Larson Amanda Peek Law Firm 822 7th St., Suite 330 Greeley Colorado 80631 970.352.8611 amanda@speeklaw.com Lata Franchesca Amadorn/a 135 Cherokee Way, Unit A Boulder Colorado 80303 858.663.8851 Franchesca.lata@colorado.edu Lazar Michael H. Lazar Law 710 11th Ave #205 Greeley Colorado 80631 970.353.0544 mlazar@michaellazarlaw.com *Only those attendees who consented to be listed are included. Last updated 12/06/10.
7th Annual Nuts Bolts CLE List of Attendees Lst Name First Name Company Name Street Address City State Zip Phone Email Address Liu Maria Collins, Liu & Lyons L.L.P. 812 8th Street Greeley Colorado 80631 970.336.6499 maria@cotriallaw.com Love Dennis The Law Office of Dennis Love, LLC 912 8th Ave, Ste 3 Greeley Colorado 80631 970.353.5573 dglove007@gmail.com Lyons Shannon Otis, Coan & Peters, LLC 1812 56th Ave Greeley Colorado 80634 970.330.6700 slyons@nocolegal.com McAdams Bill McAdams Law, LLC 821 9th Street Greeley Colorado 80631 970.353.0000 billmcadams@yahoo.com Melusky David Hagen & Melusky Law Offices 1613 Pelican Lakes Point, Ste B Windsor Colorado 80550 970.686.6618 david@h-mlegal.com Mosness Dusty Property Technica, Inc. 1719 9th Street Greeley Colorado 80631 970.352.2998 dusty@propertytechnica.com Nandan Raghu Fisher Nandan Gaide PLLC 600 17th Street Suite 2800 South Denver Colorado 42293 303.634.2229 Rnandan@fnpglaw.com Naughton Kent A. Witwer Oldenburg Barry & Johnson, LLP 822 7th St., Ste 760 Greeley Colorado 80631 970.352.3161 knaughton@wobjlaw.com Nichols Dana Weld County Court P.O. Box 2038 Greeley Colorado 80632 970.351.7300 dana.nichols@judicial.state.co.us Parins Jeff City of Greeley- City Attorney's Office 1100 10th Street Greeley Colorado 80631 970.350-9757 jeff.parins@greeleygov.com Payne Mike Otis, Coan & Peters, LLC 1812 56th Ave Greeley Colorado 80634 970.330.6700 mpayne@nocolegal.com Payton Brett Otis, Coan & Peters, LLC 1812 56th Ave Greeley Colorado 80634 970.330.6700 bpayton@nocolegal.com Peek Stanley Peek Law Firm 822 7th St., Suite 330 Greeley Colorado 80631 970.352.8611 stan@speeklaw.com Penny Bob Wick and Trautwein, LLC 323 South College Ave., Ste 3 Fort Collins Colorado 80524 970.482.4011 rpenny@wicklaw.com Peters Jennifer Otis, Coan & Peters, LLC 1812 56th Ave Greeley Colorado 80634 970.330.6700 jlpeters@nocolegal.com Perel Evan Weld County Courthouse 901 9th Ave. Greeley Colorado 80631 970.351.7300 evan.perel@judicial.state.co.us Rawlings Sherry Rawlings Law Offices 1129 10th Street Greeley Colorado 80631 970.352.4776 rawlingssherryl@qwestoffice.net Reincke Lara n/a 1742 Champa St. #4A Denver Colorado 80202 303.929.0505 Lara.reincke@colorado.edu Richardson Matthew J. n/a 2230 Capre Pine Way Colorado Springs Colorado 80919 719.651.9945 matthew.richardson@colorado.edu Roby Ruth Pelton- PO Box 347 Keenesburg Colorado 80634 720.341.8530 ruthroby@gmail.com Rose Jeremy A. Jeremy A Rose, P.C. 449 Pelican Cove Windsor Colorado 80550 970.686.2367 jeremy.a.rose@us.army.mil Ross Ellen Law Office of Ellen Ross PO Box 998 Fredrick Colorado 80530 303.500.5116 ellen@rossjenkinslaw.com Samelson Mike Wick & Trautwein, LLC Fort Collins Colorado 80522 970.482.4011 msamelson@wicklaw.com Schmidt Dawn Otis, Coan & Peters, LLC 1812 56th Ave Greeley Colorado 80634 970.330.6700 dschmidt@nocolegal.com Seigel Jenna Otis, Coan & Peters, LLC 1812 56th Ave Greeley Colorado 80634 970. 330.6700 jseigel@nocolegal.com Shoop Charles Otis, Coan & Peters, LLC 1812 56th Ave Greeley Colorado 80634 970.330.6700 cshoop@nocolegal.com Stallworth Brian n/a PO Box 334 Edwards Colorado 81632 970.480.7599 writebgs@gmail.com Stewart Mike Otis, Coan & Peters, LLC 1812 56th Ave Greeley Colorado 80634 970.330.6700 mstewert@nocolegal.com Storck Ken n/a 2138 Glenfair Road Greeley Colorado 80631 970.396.9671 storcklaw@msn.com Swift Clinton Swift and Bramer, LLP 1230 West Ash, Suite C Windsor Colorado 80550 970.460.0266 swiftp@swiftbramerlaw.com Thomas Brian Attorney at Law 331 Clark St., P.O. Box 1947 Sterling Colorado 80751 970.522.1085 bdthomaslaw@gmail.com Tregoning Kimberly Otis, Coan & Peters, LLC 1812 56th Ave Greeley Colorado 80634 970.330.6700 kktregoning@nocolegal.com Vertucci Stephen The Harris Law Firm, P.C. 1125 Seventeenth Street, Ste. 1820 Denver Colorado 80202 303.299.9484 stephen@harrisfamilylaw.com White Robert J. Attorney at Law 351 Sorrell Drive Windsor Colorado 80550 970.249.2691 rwhite@frontier.net Wolfe Jason Professional Finance Company, Inc. 5754 West 11th Street, Suite 100 Greeley Colorado 80634 970.352.5000 jwolfe@pfccollects.com Ziemke Peter Hall-Irwin Corporation 301 Centennial Drive Milliken Colorado 80543 970.587.6904 pziemke@hall-irwin.com *Only those attendees who consented to be listed are included. Last updated 12/06/10.
WELD COUNTY ATTORNEY/PARALEGAL LISTING December, 2010 ATTORNEY ADDRESS TELEPHONE FAX EMAIL PARALEGAL ABBOTT, Keith E. 1817 9 th Street 353-9717 353-9317 kealaw@aol.com Heather Gutierrez ALLEN, Kathy E. 705 14 th Street 352-0052 352-9582 KEAPC@aol.com Suzanne Hass ANSON, R. Russell P.O. Box 336155 353-5508 356-3835 ansonofc@aol.com Sandy Anson ANTOMMARIA, Amy 1029 14 th Street 346-8888 353-2209 Amy@antommariaandsledge.com Jessica Ryan ARRIES, William G. 1035 37 th Avenue Ct. 352-8558 353-4040 WilliamArries@aol.com Juanita Andrade BARRY, John J. 822 7 th Street #760 352-3161 352-3165 jbarry@wobjlaw.com Michelle Vetger BEARDSLEE, G. William 2000 S. College,#209 221-4000 221-2500 Darlene Marshall BEDINGFIELD, Jeffrey 4025 St Cloud Dr. #230, Loveland 663-7300 797-1399 jbedingfield@bedingfieldlaw.com Diane Goddard BLUNDELL, Richard K. 1227 8 h Avenue 356-8900 353-9977 admin@rkblaw.net Betty Lanckreit BODINE, Joseph 912 8 th Avenue 304-0570 356-1944 josephbodinellc@yahoo.com Rose Jones BRAMER, James D. 1230 W. Ash, #C, Windsor 460-0163 237-4838 jbrammer@swiftbrammerlaw.com Cary Carrictato-Alton BRIGGS, John J. 909 11 th Avenue 351-6083 356-1408 RobertRaylaw@comcast.net Michael Granlund BROWN, Michael R. 1122 9 th Street #202 353-3505 356-1921 mrb8912@yahoo.com Corrine Anderson BROWNELL, Todd 916 10 th Street 304-0075 351-8421 todd@counselcolorado.com Samantha Credle BRYNTESON, Timothy P. 4025 St Cloud Dr. #230, Loveland 663-7300 797-1399 tbrynteson@bedingfieldlaw.com Samantha Credle BURROUGHS, Robert C. 115 2 nd Avenue, Ault 834-1333 834-0280 robertcburroughs@netzero.net CARLSON, Eric 1109 13 th Street 352-6467 352-1667 Eric@carlsonlaw.com Jan Carlson CHASE, Ashley 812 8 th Street 336-6499 353-0214 ashley@cotriallaw.com Sandy Hartman CHIU, James 1227 8 th Avenue 356-8900 353-9977 blundelladvocates@yahoo.com COAN, G. Brent 1812 56 th Avenue 330-6700 330-2969 gbcoan@nocolegal.com Ginger Hagel Coatman COLEMAN, Keith 1011 37 th Ave Ct. #201 978-1430 kcc1439@gmail.com COLLINS, Chris 812 8 th Street 336-6499 353-0214 chris@cotriallaw.com Claudia Ruiz CONDON, William E. 1122 9 th Street #203 353-6886 353-6887 billcondon@qwest.net CONNELL, Charles J. 2308 W. 29 th St. #200 353-2507 353-2509 lawconnell@aol.com Linda Bartholomew COOK, Brian 102 E. Charlotte, Johnstown 587-4697 587-0252 bcook.law@gmail.com Crystal Sulik COWLES, Robert A. 1630 25 th Avenue 352-2000 352-2851 Marquine Edinger CROSIER, William L. 1010 9 th Avenue 356-1115 356-2202 Bill@wcrosierlaw.com Judy Boker CROWTHER, Matthew 916 10 th Street 304-0075 351-8421 mcrowther@counselcolorado.com Monet Rodriguez CUSTER, Kelly 355 Eastman Pk Dr #200 674-9888 674-9535 kelly@ljcglaw.com Autumn Penfold DENT, John R. 332 Denver, Ft. Lupton 857-4667 857-2467 dentlaw@qwest.net Isabel Guerrero DICKSON, Charles B. 821 9 th Street #101 356-5666 356-8967 cdickson@envirotechservices.com Ruthann Zeena DICKSON, Janet 821 9 th Street #101 356-5666 356-8967 jdickson@greeleyattorneys.com Ruthann Zeena DINNER, Melvin 822 7 th Street #540 352-2081 352-9172 meldinner@earthlink.net Cora Neuberger DROEGEMUELLER, Glen 1035 37 th Avenue Ct. 304-0362 353-4040 glen@glendroegemueller.com Lynda Campbell DUGAN, Michael P. 3205 69 th Ave Place 356-4343 504-3503 mpduganusma72@prodigy.net FREY, Henry C. 1035 37 th Avenue Ct. 353-4100 353-4040 henry@henryfreylaw.com Brenda Roth
GETZ, Deborah L. PO Box 214, Severance 686-2280 686-2280 getzlaw@msn.com GOFF, Linda 1750 25 th Avenue #101B 797-0518 351-0156 llgoff@comcast.net GONZALES-SOTO, Penny 320 S 3 rd #4, LaSalle 284-6353 pgonzalessoto@hotmail.com GRANT, Thomas 821 9 th Street #101 356-5666 356-8967 tgrant@greeleyattorneys.com Ben Bilewski GRASMICK, Brad 355 Eastman Pk Dr #200 674-9888 674-9535 brad@lljcglaw.com Beth Jiricek GREENFIELD, Dallas D. 822 7 th Street, #270 353-9195 353-0151 dallas@houtchens.com Shelly Welsh GROOM, Patrick M. 822 7 th Street #760 352-3161 352-3165 pgroom@wobjlaw.com Jeanette Saville GUSTAFSON, James A. 1010 9 th Avenue 356-8200 356-2202 jamesagus@aol.com Mary Lien HAGEN, JoAnne 1613 Pelican Lakes Pt, B 686-6618 686-2899 joanne@h-mlegal.com Diane Neuerberg HANCOCK, Robert 916 10 th Street 304-0075 351-8421 RHancock@counselcolorado.com Kelly Basinger HARBOUR, Lisa 821 9 th Street 356-5666 356-8967 LHarbour@greeleyattorneys.com Ruthann Zeena HAUSE, W. Troy 710 11 th Avenue #205 351-6711 353-4025 thause@aol.com LeAnna Hunker HELLERICH, Thomas E. 5754 W. 11 th Street, #101 352-4805 352-6547 thellerich@wh-h.com Kristen Thompson HERBER, Mark 916 10 th Street 304-0075 351-8421 mark@counselcolorado.com Kathy Busby HERRERA, Robert J. 1613 Pelican Lakes Pt. B 686-6616 686-2899 robert@h-mlegal.com Michelle Wardell HINZE, Chrysten S. 355 Eastman Pk Dr #200 674-9888 674-9535 chrys@lollaw.us Susan McCollum HOFF, Don J. 1630 25 th Avenue 356-6767 353-7504 donjhoff@qwestoffice.com Brandi Hepburn HOFFMAN, Brad L. 821 9 th Street #101 356-5666 356-8967 bhoffman@greeleyattorneys.com Ann Hough HOUTCHENS, Brandon 822 7 th Street #270 353-9195 353-0151 brandon@houtchens.com Kim Lebsack HOUTCHENS, John B. 822 7 th Street #270 353-3300 353-0151 john@houtchens.com Blair Szlamnik HOUTCHENS, Kim R. 822 7 th Street #270 353-9195 353-0151 kim@houtchens.com Blair Szlamnik HUGHES, William W. 5754 W. 11 th Street #101 352-4805 352-6547 whughes@wh-h.com Sally Piedalue JANKLOW, Donald E. 710 11 th Avenue #205 353-4000 353-4025 dejanklow@comcast.net Trudy Meis JOHNSON, Jacqueline 822 7 th Street #760 352-3161 352-3165 jjohnson@wobjlaw.com ZoeAnn Harwick JONES, Daniel W. 1812 56 th Avenue 330-6700 330-2969 djones@nocolegal.com JONES, David P. 355 Eastman Pk Dr #200 674-9888 674-9535 david@lljcglaw.com Moana Thaden JONES, P. Andrew 355 Eastman Pk Dr #200 674-9888 674-9535 paj@llolaw.com Moana Thaden JORGENSEN, Anne 916 10 th Street 304-0075 351-8421 anne@counselcolorado.com Samantha Credle JORGENSEN, Gerald 916 10 th Street 304-0075 351-8421 gerald@counselcolorado.com Kelly Basinger KAMADA, Ryan L. 821 9 th Street #101 356-5666 356-8967 rkamada@greeeleyattorneys.com Ruthann Zeena KINGSFORD, Ron 825 10 th Street 351-8750 351-8786 kingsfordlaw@yahoo.com Carmen Barrientos KOBAYASHI, Maile 821 9 th Street #101 356-5666 356-8967 mkobayashi@greeleyattorneys.com Ruthann Zeena LACEFIELD, Sean 822 7 th Street, #270 353-9195 353-0151 sean@houtchenslaw.com Cindy Rivers LAMBDEN, Ronald Box 29, UNC 351-2399 rlambden@earthlink.net LANGLEY, Shawn 1120 38 th Avenue, #1 356-5515 351-8103 kbeach@shawnlangley.com Kelly Beach LA PLANTE, Ann 710 11 th Avenue #306 304-9205 304-9206 alaplante@ctos.com
LARSON, Amanda 822 7 th Street #330 352-8611 353-9597 amanda@speeklaw.com Jeannie Brookes LAUE, Bradley D. 5754 W. 11 th Street #101 352-4805 352-6547 Blaue@wh-h.com Kelly Austin LAWRENCE, Kim R. 355 Eastman Pk Dr #200 674-9888 674-9535 kim@ljcglaw.us Maureen Hop LAZAR, Michael A. 710 11 th Avenue #205 353-0544 353-4025 mlazar@michaellazarlaw.com Genevieve Brucker LEWIS, Dylan G. 916 10 th Street 304-0075 351-8421 dylan@counselcolorado.com Kathy Busby LIND, Kenneth F. 355 Eastman Pk Dr #200 674-9888 674-9535 ken@lolaw.us Cindy Gormley LIU, Maria 812 8 th Street 336-6499 353-0214 maria@cotriallaw.com Claudia Ruiz LORD, C. Jan 1211 Lake Ave #202 Berthoud 532-4183 344-1322 cjl@cjlordlaw.com Ruth Sutliff LOVE, Dennis 912 8 th Avenue, #3 353-5573 356-1944 dglove007@gmail.com LYONS, Shannon 812 8 th Street 336-6499 353-0214 shannon@cotriallaw.com Claudia Ruiz MANZER, Jerry D. 710 11 th Avenue, #300 346-8500 353-8178 jmanzer@northcolaw.com Peggy Sherman MARTINEZ, Miguel 1102 5 th Street, #A 353-9828 353-9866 miguel@mmartinezlaw.com Robin Gerkin McADAMS, William T. 821 9 th Street 353-0000 356-8967 billmcadams@yahoo.com Lynnette Puga McCALL, David 355 Eastman Pk Dr #200 686-8842 674-9535 dtmgreeley@aol.com McCARTNEY, Ken 360 Oak #120, Eaton 454-1100 454-3021 bankruptcyrep@aol.com Jill Whalen McKINTYRE, Keith A. 216 1 st Street, #1, Eaton 454-3905 Kamatty@skybeam.com MELLO, Anthony V. 115 2 nd Avenue, Ault 834-1333 834-0280 tmello@info2000.net Audra Cozzens MELUSKY, David J. 1613 Pelican Lakes Pt. B 686-6618 686-2899 david@h-mlegal.com Vanesa Bullock MINTON, Michael E. 4420 W. 17 th Street 353-8060 284-8122 mjintonlaw@gmail.com MONK, Norman 1019 39 th Avenue, #G 378-6659 378-7214 cmonklaw@aol.com Kay Carpenter MORGAN, David 1007 9 th Street 356-3600 356-4071 dmatty@comcast.net Josie Herrera MORRELL, Britton 1305 8 th Street 356-9898 356-9899 mloffice@mac.com MOTYCKA, Jennifer 916 10 th Street 304-0075 351-8421 jennifer@counselcolorado.com Kelly Basinger NAUGHTON, Kent A. 822 7 th Street, #760 352-3161 352-3165 knaughton@wobjlaw.com ZoAnne Harwick NIETO, Brandilynn 1029 14 th Street 346-8888 353-2209 brandilynn@antommariaandsledge.com Alejandra Franco OLDENBURG, R. Sam 822 7 th Street, #760 352-3161 352-3165 soldenburg@wobjlaw.com ZoAnne Harwick OTIS, Fred L. 1812 56 th Avenue 330-6700 330-2969 flotis@nocolegal.com Leigh Downing OTTENHOFF, George H. 355 Eastman Pk Dr #200 674-9888 674-9535 george@lolaw.us Susan McCollum PADILLA, Noelle P.O. Box 337674, 80633 313-3743 313-3743 padillalaw@comcast.net PAYNE, Michael 1812 56 th Avenue 330-6700 330-2969 mpayne@nocolegal.com Amanda Vandagriff PAYTON, Brett D. 1812 56 th Avenue 330-6700 330-2969 bpayton@nocolegal.com Dawn Schmidt PEEK, Stanley C. 822 7 th Street #330 352-8611 353-9597 stan@speeklaw.com Jeannie Brookes PEPIN, Rebecca 916 10 th Street 304-0075 351-8421 rpepin@counselcolrado.com Monet Rodriguez PETERS, Jennifer L. 1812 56 th Avenue 330-6700 330-2969 jlpeters@nocolegal.com Kimberly Tregoning PETERSON, Megan 1230 W. Ash, #C, Windsor 460-0163 237-4838 mpeterson@swiftbrammer.com Shelly McHenry PEYTON, James J. 710 11 th Avenue #205 356-8266 353-4025 Joannie Markley PIC, Zane M. 1122 9 th Street #202 356-9770 356-1921 zpic1@netzero.com Jody Pic
RAPP, Mark 710 11 th Avenue #300 352-0674 353-8178 markarapp@northcolaw.com Michelle Nichols RAWLINGS, Sherry L. 1129 10 th Street 352-4776 352-6160 rawlingssherryl@qwestoffice.net Christy Dixon RAY, Robert E. 909 11 th Avenue 351-6083 356-1408 RobertRaylaw@comcast.net Kathy Granlund REIDEL, Michael 801 8 th Street #220B 356-5774 352-8761 michaelreidell@aol.com Jenelle Bellew RUYLE, Robert M. 801 8 th Street #220A 351-8119 352-8761 robertaruyle@aol.com Jenelle Bellew SACCO, Paul W. 1011 37 th Ave Ct #202 356-8000 356-1825 saccolaw@aol.com Connie Morris SALAYMEH, Raja M. 1029 14 th Street 346-8888 353-2209 raja@antommariaandsledge.com Alejandra Franco SALAZAR, Esteban 1439 5 th Street 356-1019 356-1295 easpc@msn.com Alicia Pinto SCHAEFFER, Warren W. 4290 W 10 th Street, #110 353-9999 356-1825 schaefferwarren@yahoo.com SCROGGINS, Julie 5754 W. 11 th Street #101 352-4805 352-6547 jscroggins@wh-h.com Kate Franz SEDLAK, Melanie 822 7 th Street, #270 353-9195 353-0151 msedlak@houtchens.com Kim Lebsack SEIGEL, Jenna 1812 56 th Avenue 330-6700 330-2969 jseigel@nocolegal.com SEXTON, Gladys 1750 25 th Avenue #203 351-6025 351-0156 countrygillhome@aol.com Peggy Darnell SHOOP, Charles 1812 56 th Avenue 330-6700 330-2969 cshoop@nocolegal.com Kim Tegoning SLEDGE, Krea 1029 14 th Street 346-8888 353-2209 Krea@antommariaandsledge.com Jessica Ryan SEHLIK, John 355 Eastman Pk Dr. #200 686-8830 674-9535 coloatty9338@hotmail.com Irene Hinojosa STEWART, Michael D. 1812 56 th Avenue 330-6700 330-2969 mdstewart@nocolegal.com Toni Young STIEBEN, Sara K. 1812 56 th Avenue 330-6700 330-2969 sstieben@nocolegal.com STORCK, Kenneth R. 2138 Glenfair Road 339-5665 339-5665 storcklaw@aol.com STUBBS, David K. 1812 56 th Avenue 330-6700 330-2969 dstubbs@nocolegal.com Toni Young SUHRE, William R. 1019 39 th Avenue #K 330-7900 330-9329 william@suhrelawfirm.com Tabitha Tedesco SWIFT, C. Paul 1230 W. Ash, #C, Windsor 460-0163 237-4838 swiftpt@swiftbrammer.com Shellie McHenry TELEP, Cynthia 2315 54 th Avenue 396-6262 396-6262 cjtelepturner@gmail.com TREVINO, Dan 1220 11 th Avenue, #203 356-3510 356-4770 thetrevinolawfirm@yahoo.com Ruben Trevino, Jr. VELASQUEZ, Susie 809 9 th Street #1 352-4365 352-5091 svelasquez@wcpto.com John Cordova VICK, J.J. 1102 5 th Street #A 392-9585 346-9053 jimvicklaw@hotmail.com Paula Armstrong WALDO, Robert M. 2314 17 th Street 352-4828 352-4829 robwaldo@earthlink.net Tammy Brown WIEST, Robert A. 710 11 th Ave, #300 352-0674 robert@rawiestlaw.com Vicki Taylor WINTERS, Jerry 5754 W. 11 th Street #101 352-4805 352-6547 jwinters@wh-h.com Kelly Austin WITWER, Stow L. Jr. 822 7 th Street #760 352-3161 352-3165 switwer@wobjlaw.com Joyce Amundson ZITO, Chad 1122 9 th Street, #205 356-4240 356-4149 zitolaw@gmail.com Meghan Martinez
CITY ATTORNEY 1100 10 th Street #401 350-9757 350-9763 Renie Shovlin Richard Brady Stacey Aurzada Jessica Pault Bob Choate Sandi Holm Jeff Parins Gordon Green John Kolanz Katie Wiktor CLS 800 8 th Avenue #202 353-7554 353-7557 Barbara Valdez Mario H. Rivera Monique Dupont Ann Haro Sipes COUNTY ATTORNEY PO Box 758, 80632 356-4000 Ext 4391 352-0242 Diane Brown Bruce Barker Lee Morrison Craig Emil Bob Knepel Cyndy Giauque Jim Pope Stephanie Arries DISTRICT ATTORNEY PO Box 1167, 80632 356-4010 352-8023 Terasina White Amy Mayo Ken Buck, DA Michael Rourke, ADA Tony Perea Katie Conner Kathy Johnston Julie Seader Christian Schulte Sadie Medrano Thea Carrasco Audrey Galloway Barbara Braun Kristy Davis Robb Miller Matt Maillaro Ryan Farr Milena Rodionov Heather Fulling Liz Flores Kirsta Britton Brandon Luna Matt Pring Ben Whitney Kaylean Millman Mandi Lozano Emela Buljko Kate Johnson Michael Tipton Kent Leier Leigh Sorensen Lindsay Miller Manuel Pellicer Jennifer Hill Dawn Crespin Kristy Treadway Hollie Wilkinson Brandon Luna Kathryn Brown Natalie Mitchell Mary-Cecelia Tharp David Skarka Steve Wrenn MUNICIPAL COURT 919 7 th Street 350-9230 350-9231 Bob Frick Maria Liu PUBLIC DEFENDER 822 7 th Street #250 353-8224 352-8293 Terri Cook Kevin Strobel Jeri Shephard SHERIFF 1915 O Street 356-4015 John Cooke COLORADO ASSOCIATION OF LEGAL SUPPORT STAFF, Judy M. Boker 356-1115 JBoker@wcrosierlaw.com LARIMER-WELD ASSOCIATION OF LEGAL SUPPORT STAFF, Judy M. Boker 356-1115 JBoker@wcrosierlaw.com WELD COUNTY BAR ASSOCIATION, Jennifer Peters, President 330-6700 jlpeters@nocolegal.com WELD COUNTY LEGAL SERVICES, Jodi Pic 356-9770 wcls@2peakpeak.com NOTE: This listing is being provided to you as a courtesy of the Larimer-Weld Association of Legal Support Staff. If you have any corrections or comments, please contact Judy Boker at 356-1115. WE APPRECIATE YOUR ASSISTANCE IN KEEPING AN ACCURATE LISTING AVAILABLE. THANK YOU!
Seventh Annual 19 th Judicial District Bench-Bar Committee Nuts & Bolts CLE EVALUATION FORM 1. Please rate the following parts of the Seventh Annual Nuts & Bolts CLE on a scale of 1 to 10, with 10 being the highest mark and 1 being the lowest: Location: 1 2 3 4 5 6 7 8 9 10 Accommodations: 1 2 3 4 5 6 7 8 9 10 Topics/Subjects of Presentations: 1 2 3 4 5 6 7 8 9 10 Presenters: 1 2 3 4 5 6 7 8 9 10 Materials: 1 2 3 4 5 6 7 8 9 10 Ease of Registering: 1 2 3 4 5 6 7 8 9 10 Reasonableness of Registration Fees: 1 2 3 4 5 6 7 8 9 10 2. What topics/subjects would you like to see at the upcoming Nuts & Bolts CLE in 2011? 3. What was the best part of the Seventh Annual Nuts & Bolts CLE? 4. What would you like to have seen done differently at the Seventh Annual Nuts & Bolts CLE? 5. Which presentation did you find most useful and why? 6. Do you have any comments or suggestions for any of the presenters? 7. Were the electronic materials easy to use? Do you have any suggestions on the use of electronic materials? 8. Comments/Suggestions:
fa December 2010 Official Newsletter of The Weld County Bar Association WCBA News Pg. 2: B.O.D. Pg. 3: Presidents Message Pg. 4: WCLS BOD and Thanks & Pg. 6, 7, & 8: WCBA Events & Announcements Pg. 9, 10, 11, & 12, & Attachments: Rapp Manzer & Weist LLP Announcement Nuts and Bolts Announcement and Registration form Financial Report Pro Bono Week Proclamation New Judgeship Nominees Young Lawyers CLE on Ethics Contact Information: Jessica Ryan, Editor Phone: (970) 356-2222 E-mail: Jessica@antommariaandsledge.com Weld County Bar Association P.O. Box 1029 Greeley, Co 80632 Last Updated: 6/9/2010 4:33 PM
December 2010 Page 2 BAR CALL Weld County Bar Association Board of Directors 2010-2011 Officers: President: Jennifer Lynn Peters (term expires 7/11) Otis, Coan & Peters, LLC (Member: Bench-Bar Committee) President Elect: Stacey Aurzada (2 nd term expires 7/11) City of Greeley City Attorney s Office (Chair: Mock Trial Committee) Immediate Past President: Mark Gonzales (term expires 7/11) Magistrate, Weld County Courts (PETA Board Representative) Secretary/Treasurer: Brett Payton (1 st term expires 7/11) Otis, Coan & Peters, LLC CBA Board of Governors Representatives: TO BE NAMED BY BOARD Kent A. Naughton (1 st term expires 7/12) Witwer, Oldenburg, Barry & Johnson, LLC (Chair: Young Lawyer Outreach Committee) At-Large Directors: Maria Liu (2nd term expires 7/12) Collins, Liu & Lyons, LLC Elizabeth Strobel (1 st term expires 7/11) District Court Judge, 19 th Judicial District (Member: Access to Justice Committee) Chris Collins (1 st term expires 7/11) Collins, Liu & Lyons, LLC Vincente Vigil (1 st term expires 7/11) Weld County Public Defender s Office Timothy P. Brynteson (1 st term expires 7/12) Bedingfield Law Robert Herrera (1 st term expires 7/12/) Hagen & Melusky, LLC Ex-Officio Members: Donna Coble, Bookkeeper Jody Pic, WCLS Please feel free to contact the board by sending us an email through the Contact Us page on our website, www.weldcountybar.org.
December 2010 Page 3 BAR CALL PRESIDENT S MESSAGE Christmas is a time of year that is wondrous, bright, and although commercial, endearing to us all. The Holiday season is also a time of reflection about things we have accomplished over the past year, and to Relish the opportunities that await us in the New Year: opportunities to make new resolutions, and find Incentive to finally do the things we vowed to do in the past but somehow never found time for. I find Solace in this time of year which often is hectic as people try to close that last deal, resolve that last case, and Tie up loose ends before the year ends. The drive to bring things to a conclusion, the rush of concluding a Matter, and the joyous celebrations with co-workers, friends, and family that await when those tasks are done Are something to be savored. I hope you all take this time to re-energize yourselves, refocus your efforts; & Savor the chances you will have in the next year to continue making a difference through all you do. With warmest wishes this holiday season, Jennifer Lynn Peters President Weld County Bar Association, Inc.
December 2010 Page 4 BAR CALL WELD COUNTY LEGAL SERVICES BOARD OF DIRECTORS 2009-2010 Judge Elizabeth Strobel --- President Diana David Brown (Greeley Police Department)--- Vice President Diane Neuerburg (Paralegal for Hagen & Melusky) --- Treasurer Attorney Jo Anne Hagen --- Secretary Judge Dinsmore Tuttle Judge Rebecca Koppes-Conway Attorney Sean Lacefield Attorney Susie Velasquez Attorney Monique Dupont Attorney Ryan Kamada Thank you all for volunteering your time to serve on the WCLS Board of Directors for 2009-2010. Thanks to Joseph Bodine and Barb Valdez for helping with Call-A-Lawyer in December. Thanks to Stan Peek for conducting the divorce clinic. THANKS so much to JEREMY ROSE for accepting a new case. Thanks to DON JANKLOW for offering free thirty minute consultations. CHRISTMAS TURKEY DONATION Don t forget you still have time to donate $10.00 to Weld County Legal Services to purchase a turkey for Christmas that will be donated to the Weld County Food Bank. We already have purchased over 75 turkeys for the Food Bank!
December 2010 Page 5 BAR CALL LEGAL NIGHT IN GREELEY We had a great turn out for Legal Night in November. THANKS so much to Dennis Love, Amy Antommaria, Brandi Nieto, Brandon Hirsch, Britton Morrell, Mike Mullison, Ryan Kamada and Susie Velasquez for their help..just a reminder that our next Legal Night will be held on January 26 th, 2011 from 6:00 p.m. until 8:00 p.m. at Our Lady of Peace Church, 1311 3 rd Street, Greeley, Colorado. Legal Night is presented by the Colorado Lawyers Committee and the Spanish Speaking Lawyers Association of the Colorado Bar Association, along with Weld County Legal Services. ATTORNEYS AND INTERPRETERS are needed. Please call Jody Pic (970) 310-8367 if you are interested in attending and offering your legal expertise! I have received a large number of applications from individuals who qualify for our services. If anyone is available to accept a new case at this time it would be GREATLY APPRECIATED. Also remember that you can receive CLE Credits for your time. ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dear Colleagues, This coming week marks a national celebration of pro bono legal services. Here in Colorado we especially celebrate your firm s pro bono commitment. Please thank every member of your firm for the time they spend with persons and organizations that are in so much need. We are looking forward to again recognizing your firm early next year for its pro bono achievement in the calendar year 2009. Attached is the Chief Justice s proclamation in honor of pro bono celebration week. Justice Greg Hobbs on behalf of the Colorado Supreme Court
December 2010 Page 6 BAR CALL Events 12/10/10 7 th Annual Nuts & Bolts CLE (details attached) Future WCBA luncheons are as follows: January 18, 2011 March 15, 2011 April 19 12pm to 1:30pm, all at Courts West. Please RSVP to Dawn Schmidt at 970-330 330-6700 or dschmidt@nocolegal.com for any upcoming WCBA luncheons or WCBA events. High school mock trial coaches are needed at Fort Lupton High School. Attorney coaches may build highly rewarding and long-lasting relationships with high school students, who describe their participation in this program as life-changing. Commitment time may be only a few hours or more per week, depending on your schedule. Mock trial season is from late October through February, with the state tournament in March 11 & 12, 2011. If interested in coaching Fort Lupton please contact Meghan Bush at mbush@cobar.org
December 2010 Page 7 BAR CALL Thanks You Mediators Holiday Cheer Gathering Magistrate Gonzales would like to invite You and Yours to come join us on December 11, 2010 from 1 to 4pm. 4844 3 rd Street Greeley, Colorado Lots of Food and Cheer We want everyone to know how much we have enjoyed and appreciate all your hard work! PLEASE RSVP JOY at wagoner.joy@judicial.state.co.us
December 2010 Page 8 BAR CALL DO IT YOURSELF DIVORCE CLINICS FOR 2010 SPONSORED BY WELD COUNTY LEGAL SERVICES, INC. 6:30 TO 8:30 p.m. Thursday Evenings (once a month) Located at 800 8 th Avenue, Room #202, Greeley, CO YOU MUST REGISTER IN ADVANCE FOR THIS CLINIC BY SUBMITTING AN APPLICATON TO WELD COUNTY LEGAL SERVICES, 915 10 th STREET, ROOM #107 OR CALL 970-351-7300 Ext. 4514 FOR DETAILS. YOU MUST BRING A DIVORCE PRO SE PACKET WITH YOU LAST CLASS FOR 2010 December 16th The pro se divorce packets may be purchased as the Clerk s Office on the first floor of the Centennial Center, 915 10 th Street, Greeley. The cost, payable in cash or by credit card only, is $25.00. You must purchase a packet and bring it with you to the clinic, along with a pencil. Bring along extra paper for notes. A volunteer Weld County Attorney will be available to help explain the instructions on how to fill out the paperwork and the procedure for filing your action. There is no charge for this clinic, but you must submit an application to Weld County Legal Services and be qualified before attending. Be advised that the attorney conducting the clinic is there for purposes of providing information and is not entering your action as attorney of record, or agreeing to represent in your action. Weld County Legal Services (970) 351-7300 Ext. 4514
December 2010 Page 9 BAR CALL REDUCED! Beautiful Office Space (two offices and conference room) in Bittersweet Complex. With Attorney s and other professionals. Only $650.00 a month Please call352-8558 Looking for someone to office share. Might be willing to consider hiring right person for an associate position as well. For further information, call Sherry L. Rawlings at 352-4776. Hey you, yeah you, get your life back. When work chains you to your desk, your family doesn t know you, and you missed another of the kids events, it s time to call the legal geek. Pleadings, briefs, contracts and legal documents. References. John Cevette 970 597 970 Licensed attorney seeking contract or permanent position. Experienced in estate planning/administration ; tax; real estate and HOA; research and appellate brief writing; business and non-profit incorporations; municipal and utility; contractual and transactional; litigation and collections, etc. Carol Johnson in Loveland, 970-669- 1138; carol- 530@comcast.net Know Your Judges campaign is in full swing! Please check out the website for more information www.knowyourjudge.com Prime Class! A professional office space now available, 2 nd floor Signature Bank in Water Valley, Windsor. Five offices are available. Lease includes use of all common facilities such as lounge, conference rooms and staff work stations. Phone and computer service are readily available for connection. This is a condominium sharing office, current tenants are two law firms. For more information, contact Ken Lind or Kim Lawrence at (970) 674-9888
December 2010 Page 10 BAR CALL Two new job opportunities are available in the school administration. Senior Assistant Dean of Students Program Director for the Public Sector & Student/Alumni Career Networking Senior Assistant Dean of Students Apply online at CU Jobs (#810484) See a detailed job description The Senior Assistant Dean is the primary point of contact for support and service for all Colorado Law students with the Law School's administration, reporting to the school's Dean. Ideal candidate will have familiarity with standards of professionalism and legal ethics, good oral and written communication skills, leadership ability, a sense of compassion toward students, creativity and innovation in solving problems, confidence in dealing with difficult situations, a strong work ethic, and a commitment to the school's goals and Strategic Plan. Duties of the position include: 50% - Provide programmatic support for students and student organizations, including personal counseling to students, and referrals for those in need of professional assistance for physical, mental, or emotional issues. 20% - Coordinate and oversee Admissions & Financial Aid and Career Development Offices. 15% - Coordinate and oversee recruitment, retention, and support for students of color and all diverse backgrounds. 15% - Develop and oversee student support programs including tutoring, and coordinate university and external resources for academic support. Qualifications: Law degree and at least five years (combined) experience in law practice or university administration. Law school administration experience highly desirable. Program Director for the Public Sector & Student/Alumni Career Networking Apply online at CU Jobs (#810429) See a detailed job description The Director reports directly to the Law School's Assistant Dean of Career Development. The successful candidate must take an energetic and creative approach to identifying alternative career options as well as public sector options for law graduates that are available for students, and must be willing to facilitate introductions of students to specific potential employees. Candidate will motive as well as prepare students for the job search and be prepared to promote students to potential employers. 30% - Career counseling 25% - Career employer outreach 25% - Student/alumni career networking 10% - Administrative 10% - Develop educational programs Qualifications: Law degree and excellent oral and written communication skills and strong organizational skills. Prior experience in legal practice and legal recruiting are strongly preferred. Candidate must have excellent supervisory, interpersonal, counseling, and programming skills; computer skills, particularly familiarity with web-based legal career research systems; maturity, energy, initiative, professionalism, attention to detail, ability to follow through, positive attitude, ability to work in a fast-paced environment, and an understanding of the critical importance of confidentiality; and ability to work independently, as part of a team, and with numerous diverse constituencies is critical. Please direct any questions to the school's Director of Operations and Financial Management Dennis Russell at 303-492-3090.
December 2010 Page 11 BAR CALL CORE Mediation Training Mediators without Borders 4412 W Eisenhower Blvd Loveland, CO 80537 Daytime Phone : 970-593-3050 Evening Phone : 303-506-3748 Email : rutledgeke@gmail.com CLE Credit Training Opportunity: CORE Mediation Mediators without Borders is holding a 3-Day CORE Mediation Training Course (60 hours total). This course is eligible for 40 General/5 Ethics credits. Cost of this 3-Day Course is just $795! Mediators without Borders is a Division of IADR Global. For more information about this course and our entire listing, please contact Kristi Rutledge at (970) 593-3050 or visit www.iadrglobal.org FIRST CLASS OFFICE SPACE NOW AVAILABLE FOR LEASE The Greeley Building 710 Eleventh Avenue, Greeley, CO- LOCATED ONE BLOCK FROM WELD COUNTY COURTHOUSE IN HISTORIC DOWNTOWN GREELEY Space available ranging from 1-room offices on up to 3,700 square feet and more. Unbeatable lease rates in this First class historic landmark building. Superior tenant finish with hardwood TRIM, high ceilings, Tall windows, ELEVATOR, and new carpet. ABUNDANT ONSITE PARKING. Fiber-available, T-1 carrier, coaxial cable, security building, multiple HVAC zones. Daily janitorial service provided. On site maintenance. Responsive local owners. Two building conference rooms available at no extra charge, full kitchen, handicap accessible elevator building. Great space and location for ATTORNEYS AND OTHER LEGAL PROFESSIONALS. PLEASE CALL ONSITE OWNER DIRECTLY FOR MORE INFORMATION: T. Drew Notestine, Thomas & Tyler, LLC (970) 351-8888
December 2010 Page 12 BAR CALL WESTERN DEPOSITION & TRANSCRIPTION, LLC WE LOVE OUR WELD COUNTY BAR ASSOCIATION FRIENDS So we would like to offer: A DEPOSITION WITH NO APPEARANCE FEE To redeem, contact: Vickey Wallace vickey.wallace@westerndeposition.comphone: 970.301.5697 Fax: 303.223.2853