Welcome to the Colorado Litigation Report

The Colorado Litigation Report is an online resource that tracks and summarizes Colorado appellate court decisions affecting civil and commercial law. Summaries answer three questions: what was the case about, what legal rules does it stand for, and how is it important? Each post answers all three questions in 750 characters or less. Posts are engaging, tell the story of the case, and summarize the legal result — in about 30 seconds. In a busy world, the CLR’s micro-summaries provide premium information and significant time-value to any practice or business.

When it comes to Colorado Supreme Court coverage, the CLR is the most comprehensive in the state. The CLR provides a single place to find original jurisdiction and certiorari grants. And the CLR is the only place to find which justice/s would have granted issues that were denied.

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Colorado Civil Access Pilot Project Preliminary Analysis Released

The Institute for the Advancement of the American Legal System, has released a report detailing their Preliminary Analysis of the CAPP process.  From the IAALS blog, here is a partial summary of their findings:

Our initial analysis reveals that the CAPP process as a whole has succeeded in achieving many of its intended effects, including a reduced time to disposition, increased court interaction, proportional discovery and costs, and a lower level of motions practice. Much of the positive feedback relates to CAPP’s early, active, and ongoing judicial management of cases, with many calling for this to become a permanent feature of the rules. For those cases that are at least minimally contested, one of the challenges of the project relates to differences between simple and complex cases. The first part of the CAPP process (rolling and staggered deadlines for pleadings and initial disclosures) appears to work better in simple cases, while it can fall apart in complex cases. The second part of the CAPP process (everything from the joint case management report forward) appears to provide a real benefit for complex cases, while it can be too much for simple cases. This is just one nuance in the results, and the full report will provide interesting reading for those engaged in these issues—both inside and outside of Colorado.

The CAPP Rules were implemented by the Colorado Supreme Court to test whether “adopting certain rules regarding the control of the discovery process reduces the expense of civil litigation in certain business actions, and . . . the use of modified rules of Civil Procedure concerning the pleading, discovery and trial management of certain cases” would improve the civil litigation process.  As noted by the IAALS:

[T]he CAPP rules were designed to bring the disputed issues to light at the earliest possible point, tailor the process proportionally to the needs of the case, provide active case management by a single judge, and move the case quickly toward trial or other appropriate resolution.

All civil litigators in Colorado should be carefully following the progress of this Pilot Project.  The Colorado Supreme Court has already issued opinions requiring judges to actively intervene early in the discovery process.  In DCP Midstream, LP, v. Anadarko Petroleum Corp.; Kerr-McGee Oil & Gas Onshore LP; and Kerr-McGee Gathering LLC, 2013 CO 36 (June 24, 2013) the Court noted that:

The overriding purpose of the Colorado Rules of Civil Procedure is “to secure the just, speedy, and inexpensive determination of every action.” C.R.C.P. 1. To this end, our rules reflect a growing effort to require active judicial management of pretrial matters to reduce delay and the increased costs associated with it. “Delay devalues judgments, creates anxiety in litigants and uncertainty for lawyers, results in loss or deterioration of evidence, [and] wastes court resources.” . . . Delay also increases costs. The increased costs associated with protracted litigation may force a party into an unwarranted settlement or may deter a party from bringing a viable claim. Active judicial management is necessary to address these problems, and our rules have evolved to stress this principle.

Regardless of form, active case management in civil cases is now the rule and not the exception.

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Filed under Commentary, Discovery

New C.R.E. 803(10), effective February 18, 2014.

Here is the revised Colorado Rule of Evidence 803(10). No other changes were made to the rule. This conforms Colorado’s Rule to the Federal Rule

RULE CHANGE 2014(3)

Colorado Rules of Evidence

Rule 803.  Hearsay Exceptions: Availability of Declarant Immaterial

 The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

 (1) through (9) [NO CHANGE]

(10)   Absence of public Record. Testimony – or a certification under  Rule 902 – that a diligent  search   failed to disclose   a public  record  or  statement  if:

(A) the testimony   or certification  is admitted   to prove  that

        (i) the record or statement does not exist; or

        (ii) a matter  did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind; and

 (B) in a criminal case, a prosecutor who intends to offer a certification provides written notice of that intent at least 14 days before trial, and the defendant does not object in writing within 7 days of receiving the notice – unless the court sets a different time for the notice or objection.

 The Committee recommended adoption of this amended version of C.R. E. 803( 10) to follow the identical amendment to F.R.E. 803(10) which took effect on December l, 2013.

( 11) through (18) [NO CHANGE]

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Filed under Commentary, Evidence

Alex J. Martinez, as Manager of Safety for the City and County of Denver, v. Denver Firefighters Local No. 858, IAFF, AFL-CIO, 2014CO15 (March 3, 2014)

“[D]iscipline exists outside the ambit of collective bargaining.” Opinion. Firefighters Union sued Denver, claiming new disciplinary rules violated its 1971 collective bargaining agreement (CBA) by altering the terms and conditions of employment. Denver argued the City Charter vested the city with the unilateral right to draft disciplinary rules. The trial court issued injunction, preventing enforcement of the new rules, and the Court of Appeals affirmed, finding the rules to be a term and condition of employment, subject to the agreement. Deciding an issue of first impression, the Colorado Supreme Court held the plain language of the City Charter expressly granted Denver the unilateral right to draft and implement disciplinary rules, and that the rules were not included in the CBA as a term or condition of employment, subject to collective bargaining.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC736.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9266&courtid=2

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Filed under Administrative, Employment, Government, Municipal

Atlantic Richfield Company v. Whiting Oil and Gas Corporation, f/k/a Equity Oil Company, 2014CO16 (March 3, 2014)

“A non-vested property interest is void unless it is certain to vest, if at all, within 21 years after the death of a life in being at the time the interest was created.” Common-law Rule Against Perpetuities (RAP). This case involves a nondonative commercial transaction dating back to 1968, amended in 1983 to include a non-exclusive revocable option. When the plaintiff sought to exercise the option in 2006, defendant claimed the RAP voided the option. The trial court, affirmed by the court of appeals, held that the option was enforceable as reformed under the Statutory RAP (USRAP). The Court affirmed on different grounds, holding that the RAP does not apply in commercial transactions; the rule against unreasonable restraint on alienation does. By holding that the RAP does not apply to revocable options, USRAP reformation was inapplicable. Plaintiff could exercise its option.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2010/10SC688.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9267&courtid=2

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Filed under Contracts, Defenses, Probate, Real Property

New Year, New Author, New Resource

The CLR is proud to announce the addition of a new author – Andy Helm.

The CLR is also recommending Jeff Vail’s Litigation Innovation & Strategy blog as an excellent resource  – especially his Litigation Checklist, which is useful for experienced and new attorneys alike. A link can also be found on the right side of this page.

More about Andy:

Andy has been living in Colorado since he was nine years old and attended Cherry Creek High School. His Bachelors of Science is in Nonprofit and Public Management from Colorado State University. Andy will be graduating from the University of Denver Sturm College of Law in May 2014. He will be joining the Denver office of Lewis Roca Rothgerber, focusing on commercial litigation and regulatory compliance. Prior to law school, he spent 12 years in the title insurance industry. In 2007, Andy was one of the first state employees dedicated to the regulation of title insurance with the Colorado Division of Insurance where he also oversaw a major rewrite of the regulations governing title insurance in Colorado.

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In the Matter of: Robert A. Rand – Public Censure, 2014CO11 (Feb. 10, 2014)

Judge Robert A. Rand, County Court Judge in Loveland Colorado was publicly censured and agreed to resign effective March 31, 2014. He entered into a Stipulated Resolution with Special Counsel pursuant to Rule 37(d) of the Colorado Rules of Judicial Discipline, which stated in part that Judge Rand engaged in undignified conduct including making comments about the physical appearance of people appearing before him and other inappropriate comments, and engaged in ex parte communications with parties or counsel. Pursuant to Colo. RJD 6.5(a), and “finding no good cause for the stipulated resolution to remain confidential or the record of proceedings to be sealed as permitted by Colo. RJD 40,” the Court made the stipulated resolution and the record of proceedings public.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SA172.pdf

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Filed under Attorney Regulation, Ethics

In Re: Maurice C. Jones, and and Citizen Center, v. Christian R. Samora, Treasurer; Town of Center; Herman Dickey Sisneros; Edward W. Garcia; and Geraldine Martinez, 2014CO4 (Jan. 27, 2014, as modified Feb. 24, 2014)

“[B]y 1896, the vast majority of states had adopted the Australian [secret] ballot system.” – Opinion. The Town of Center held an election recalling its mayor and trustees. A recalled trustee sued to have the election declared void, arguing that leaving absentee ballot stubs attached during the counting process violated the secrecy guarantee of the CO Constitution, Art. VII, Sec. 8. The trial court, relying on precedent set in Taylor v. Pile voided the election, even though the election’s fundamental integrity remained uncompromised. After reviewing the history of ballot secrecy and changes to Colorado election law, the Court reversed. The Court held 1) Sec. 8 applies only to marking ballots, not to detachable stubs, and 2) an election must be set aside only when an entire election is not secret. The statutory violations of CRS 31-10-607 and 1007 were not sufficient.

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Filed under Constitutional, Elections, Government, Municipal

The Cases Pending Review page has been updated

The page now has an updated photograph of the new Colorado Supreme Court, including the Hon. William Hood III.

Also, two new grants of certiorari and three new grants under CAR 21 have been added:

13SA332, In Re: Plaintiff: Cindy Wagner, v. Defendants: James Brian McMahill; Allen, Vahrenwald & Johnson LLC, n/k/a Vahrenwald, Johnson & McMahill, LLC a Colorado limited liability company; Pelegrin & Radeff P.c.; Jon Slaughter Pelegrin; and Rebekah Warfield Brown; and Concerning Defendant: Attorney H.

13SA124, In re: Plaintiff: Scott R. Simpson v.Defendants: Cedar Springs Hospital, Inc., a d/b/a Cedar Springs Behavioral Mental Health Systems; Roger Dwight Pumphrey, M.D.; and Charles J. Peck, M.D.

No. 13SC497, Oasis Legal Finance Group, LLC; Oasis Legal Finance, LLC; Oasis Legal Finance Operating Company, LLC; and Plaintiff Funding Holding, Inc., d/b/a LawCash, v.  John W. Suthers  and Julie Ann Meade, Court of Appeals Case No. 12CA1130

No. 13SC556, Allstate Insurance Company v. Medical Lien Management, Inc.,Court of Appeals Case No. 12CA691

2014SA13, In Re: Lillian R. Malm v. Marion Villegas,

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In Re: Michael Young and Amy Larson et. al. v. Jefferson County Sherriff and Deputy John E. Hodges and Cristian Robinson, 2014CO1 (January 13, 2014)

“Click it or ticket” does not apply to law enforcement when a deputy is transporting a juvenile and does not secure the juvenile’s seat belt. This case’s first interlocutory appeal involved the County’s unsuccessful claim for immunity under the CGIA. On remand, the County then sought immunity under CRS 19-2-508, which provides for immunity for law enforcement officers who, in good faith, transport a juvenile under the direction of the court. The statute creates a presumption of good faith. After a hearing, the trial court determined that by failing to secure the juvenile’s seat belt, the officers acted in bad faith. On review, pursuant to CAR 21, the Court disagreed and held that allegations of negligence alone are not sufficient to overcome the presumption of good faith, and thus the granting of immunity. The case was sent back to the trial court, again.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SA216.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9216&courtid=2

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Filed under Defenses, Government, Immunity, Interlocutory Review, Personal Injury

In Re the Marriage of Marta Cardon and Jamie Castro, 2014CO3 (January 13, 2014)

“Millennial Moms Focused on ‘Me’ Time, Study Says.” Time has value in a marriage; so it has value in a divorce. As a matter of first impression, the Court considered whether accrued time off earned during a marriage is marital “property” subject to equitable distribution. The trial court divided husband’s accrued time; the court of appeals reversed finding the value too uncertain to be deemed property and remanded. The Court affirmed on different grounds, examining two strains of thought: 1) leave as an alternative form of wages is not property; or 2) leave as deferred compensation and is property. The Court held that leave has value as time off or as cash, so if an enforceable right to be paid for leave exists, it is property. If its value can be reasonably ascertained it is divisible; if not, the time should be treated as an economic circumstance when equitably dividing property.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC59.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9214&courtid=2

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Filed under Divorce, Family Law