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.

The CLR allows you to:

• Read the original opinions by following the link at the end of the post.
• Find topics using the categories or tags.
• Do word searches.
• “Follow” the CLR to have posts delivered to you directly.
• Follow the CLR on Facebook, and have updates appear in your newsfeed.
• Follow the CLR on Twitter – Follow @cololitigation
• Add the CLR to your RSS/Atom feed (such as My Yahoo, Google Reader, etc) by pasting this address into the Add field: http://coloradolitigation.wordpress.com/feed/

Please feel free to leave your comments under this or other posts. All comments are moderated before they are published. Click on the Contact CLR tab for more information about sending a private message. All respectful discussion is welcome.

New Certiorari Grant plus a near-grant

The Colorado Supreme Court granted certiorari in one case today involving the governmental immunity act : Marilyn Daniel v. City of Colorado Springs, 2012COA171. As noted in the comments to the CLR summary of the court of appeals’ opinion, this case is related to other cases pending before the Court addressing what constitutes a “public facility.”

JUSTICE COATS and JUSTICE EID would have granted Sonitrol Corporation v. Core-Mark Midcontinent, Inc.; et. al. Court of Appeals Case Nos. 10CA2289 & 11CA369 (April 29, 2013) to address two issues concerning a cause of action for willful and wanton breach of contract, one of which was framed in terms of whether the court of appeals erred in applying its “own notions of public policy … contrary to Colorado’s public policy of protecting freedom of contract and allocation of risk.”

Chief Justice Michael L. Bender’s Message for Law Day

Click HERE for the text of the Chief Justice’s Message for Law Day 2013.

Nathan J. Dunlap v. Colorado Department of Corrections and Roger Werholtz as Interim Executive Director, 2013COA63 (April 25, 2013)

Just before Nathan Dunlap is put to death, now set for the week of August 18, 2013, the Warden will disconnect the telephone in the execution room and the witness-viewing window curtain will be opened. Department of Corrections (DOC) Regulation 300-14 sets forth the procedures for carrying out a death sentence by lethal injection, but it was not promulgated pursuant to CRS 24-4-101 to 108 – the Administrative Procedures Act (APA). Dunlap sought an order invalidating the Regulation for failure to follow the APA. The Regulation was exempted from the APA, and thus valid, because CRS 17-1-103 and 111, granting the DOC with authority to manage, supervise and control inmates, and to administer sentences imposed by the courts, exempts the DOC from the APA. A partially dissenting judge would have ordered full disclosure of the Regulation to allow courts to make a more informed decision.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA0955-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8923&courtid=1

Brandon Coats v. Dish Network LLC, 2013COA62 (April 25, 2013)

Despite rumors to the contrary, the use of medical marijuana is not a “lawful activity” under Colorado law; at least not under CRS 24-34-402.5, the Lawful Activities Statute protecting employees from termination for off-the-job activities. Plaintiff, a quadriplegic, is licensed to use medical marijuana. Defendant fired plaintiff after he tested positive for marijuana, which was a violation of its drug policy. The court of appeals, applying the ordinary meaning of “lawful activity” as used in section 24-34-402.5, held plaintiff’s medical marijuana use, unlawful under federal law, was not “lawful.” Although defendant defeated plaintiff’s claim, it was not entitled to attorneys’ fees pursuant to CRS 13-17-201, mandating fee awards, because the claim was not a “tort.” First, it is not an invasion of privacy tort and second, it lacks the general characteristics of a tort.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA0595%20&%2012CA1704-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8922&courtid=1

Mile High Cab, Inc. v. Colorado Public Utilities Commission and SuperShuttle International Denver, Colorado Cab Company, and MKBS, LLC 2013CO26 (April 22, 2013)

Proof by a preponderance of the evidence means probable not possible. Here, a taxi service sought a Certificate of Public Convenience and Necessity from the Public Utilities Commission so it could operate in Denver. Existing taxi companies objected, claiming another taxi service would cause oversupply in the market and not lead to robust competition. An ALJ concluded there was a significant “possibility” the objectors were right. The PUC affirmed, using “possibility” and “probability” interchangeably. The Court held that “probable” expresses higher confidence than “possible,” and is closer to “preponderance.” Thus, objectors must prove, and the PUC must clearly manifest an intent to apply a preponderance standard to find that a Certificate was not required, and issuing one would actually be detrimental. The PUC did not do so; the denial of the Certificate was reversed.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SA312.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8912&courtid=2

In the Matter of Attorney G, 2013CO27 (April 22, 2013)

Like the thunk of a mechanical stamp on a wooden desk denying a passport application, the outcome of this case reverberates with the caption: “Rationale Disapproved.” An immigration attorney’s (“G”) representation is paid by the wife of a foreign citizen in deportation proceedings. The client was deported with an unpaid balance. G, who had obtained possession of the wife’s passport, kept it to secure payment pursuant to CRS 12-5-120, the retaining lien statute. The Attorney Regulation Counsel filed an ethics complaint under Colo. RPC 1.15(b) & 1.16(d). The Board dismissed since holding the passport was not impermissible. Exercising its plenary authority over attorney disciplinary matters, the Court determined that 12-5-120 doesn’t permit a lien on a passport, as it is the property of the federal government, not the client. Dismissal was upheld, but for different reasons.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SA239.pdf
http://www.cobar.org/opinions/opinion.cfm?opinionid=8911&courtid=2

In Re: Gateway Logistics, Inc. and Gateway Freight Solutions, Inc. v. Christopher Smay, Republic Cargo, and Republic Freight, 2013CO25 (April 15, 2013)

“If you want to keep a secret, you must also hide it from yourself.” – George Orwell. In this interlocutory appeal, the Court reviewed an order by the trial court to allow the plaintiffs to inspect personal and business computers, smartphones, other electronic devices belonging to the lead Defendant (and his wife, who is not a party to the case), and approximately three years of defendants’ telephone records. The Court, making the rule absolute (reversing the trial court and remanding the case) held: 1) the assertion of privacy requires a trial court to apply the balancing test in In Re District Court and failing to do so is an abuse of discretion; 2) people have a privacy interest in their electronically stored information and their telephone records; and 3) a nonparty’s status as such must be considered. Here, the trial court failed to apply the balancing test and was ordered to do so.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SA287.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8907&courtid=2

BDG International, Inc., v. Robert J. Bowers and Auxiliary Graphic Equipment, Inc., 2013COA52 (April 11, 2013)

Maritime law applies in Colorado. Defendants (D) bring goods from Australia to CO. Plaintiff (P) is a subcontractor for packing and shipping. D is not paid and then fails to pay P. P asserts a lien against D’s goods, so D enters into a payment agreement (governed by CA law) with P. D breaches, P sues and wins. On appeal, D argued the state courts lack subject matter jurisdiction because the claims were subject to federal Maritime law. The court of appeals held that federal courts have exclusive jurisdiction only for in rem maritime claims, but that state courts have concurrent jurisdiction over these in personsam maritime claims. The court of appeals also then held: 1) judgment was final despite directions regarding post-judgment satisfaction; 2) there was no setoff for judgments against different parties; and 3) the trial court correctly resolved the contract claims under CA law.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/11CA1581-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8904&courtid=1

Colorado Court of Appeals to Hear Arguments at Monarch High School on Tuesday, April 9, 2013.

The Colorado Court of Appeals will hear oral arguments in two cases on Tuesday, April 9, 2013, at Monarch High School in Louisville before students and the public.  The following is taken from the Court’s press release:

The visit is part of the Colorado Judicial Branch’s Courts in the Community, the outreach program the Colorado Supreme Court and Court of Appeals initiated on Law Day (May 1), 1986. The Courts in the Community program was developed to give Colorado high school students firsthand experience in how the Colorado judicial system works and illustrate how disputes are resolved in a democratic society. These are not mock proceedings. The court will hear arguments in actual cases from which it will issue opinions. The court generally issues opinions within a few weeks of the arguments.

Daniel M. Taubman (presiding), Dennis Graham and Robert D. Hawthorne will be the presiding judges.

Schedule

Opening remarks 10 a.m. – 10:15 a.m.

12CA0956, Evans v. BCB Properties- 10:15 a.m. – 10:45 a.m.

Judges conference; attorneys answer students’ questions - 10:45 a.m. – 11 a.m.

11CA1074, People v. Benitez - 11 a.m. – 11:30 a.m.

Judges conference; attorneys answer students’ questions - 11:30 a.m. – 11:45 a.m.

Judges answer students’ questions - 11:45 a.m. – 12 p.m.

Lunch, judges and selected students - 12 p.m. – 1:30 p.m. (est.)

Here is a summary of the two cases.

Leslie R. Evans and Esther H. Evans v. BCB Properties LLC and Alan Towbin: Mr. and Ms. Evans, who had owned a condominium in Telluride, have asked the Court of Appeals to review a trial court’s order dismissing their claims against a company that owns part of the building where their condominium building.  Mr. and Ms. Evans had sued BCB Properties, claiming that odors from the operation of a brewpub in the same building diminished the value of their property and delayed its sale.  Mr. and Ms. Evans also argued that BCB was liable for failing to stop the brewpub from producing the odors.  The trial court, following a non-jury trial, concluded that BCB did not unreasonably interfere with Mr. and Ms. Evans’ use and enjoyment of their condominium, and that they had knowingly given up any right to make a claim for nuisance caused by BCB’s actions.

People of the State of Colorado v. Joshua Patrick Benitez: The defendant has asked the Court of Appeals to review his convictions on charges of menacing and prohibited use of a weapon while intoxicated.  Mr. Benitez was convicted of pointing a rifle at an off-duty MorganCounty sheriff’s deputy and was sentenced to two years in prison.  Mr. Benitez argued that the trial court improperly allowed three types of evidence to be admitted at trial: evidence of his previous incarceration at the Morgan County Jail, evidence regarding his silence following his arrest, and evidence of ammunition that was found in his car and in his pocket.

Clerkship Applications

If you are a 2L student, now is the time to start work on your clerkship applications and to strengthen your writing portfolio (beyond the first-year legal writing class work). Law Journal experience is highly valued.

For your information, below is the currently posted status of law clerk positions for the Justices of the Supreme Court. You can find the status of Court of Appeals clerkship openings for each Judge by following this link HERE.

Clerkships at the Colorado Supreme Court are full-time positions for one year beginning in August or September of each year. Each Justice hires their own law clerks. Please see the information provided below for the details on applying for a clerkship in each Justice’s chambers. The current salary for clerkships is $50,064 per year. Applicants must have completed at least 4 semesters of law school prior to submitting application materials.

Chief Justice Michael L. Bender – 720-625-5400
All clerkship positions have been filled.  We are no longer accepting clerkship applications.

Justice Gregory Hobbs – 720-625-5440
Clerkships beginning September 1, 2013 have been filled.
Application requirements: hard copy of resume, cover letter, law school transcripts for at least four semesters (fourth semester grades can be submitted when available), 2 letters of reference. Applicants should be members of a law journal staff.

Justice Nancy Rice – 720-625-5460
Clerkships beginning in the fall of 2013 have been filled.
Application requirements: resume, law school transcripts (1st and 2nd year), writing sample, 3 to 5 letters of reference. Reference letters may be sent separately.

Justice Nathan Coats – 720-625-5420
Clerkships for fall of 2013 have been filled.
Application requirements: resume, law school transcripts (1st and 2nd year), writing sample, 3 to 5 letters of reference. Reference letters may be sent separately.

Justice Allison Eid – 720-625-5430
Clerkships beginning in the fall of 2013 have been filled.  Applications for clerkships beginning in the fall of 2014 are now being accepted.  Application requirements: resume, law school transcripts (1st and 2nd year), writing sample , at least 3 letters of reference. Reference letters may be sent separately.

Justice Monica Márquez – 720-625-5450
Applications for clerkships beginning in the fall of 2014 are now being accepted.  Application requirements: resume, law school transcripts (1st and 2nd year), writing sample, 3 to 5 letters of reference. Transcripts sent without second semester grades should be supplemented as grades become available and reference letters may be sent separately.

Justice Brian D. Boatright – 720-625-5410
Clerkships beginning in the fall of 2013 have been filled.
Application requirements: cover letter, resume, writing sample, law school transcripts (1st and 2nd year), and 2 to 4 letters of reference.  Reference letters may be sent separately.

Unpaid Internships  

Applications for unpaid internships for Justice Boatright beginning in the summer and fall of 2013 are now being accepted.  Application requirements: cover letter, resume, law school transcripts, writing sample, 2 to 4 letters of reference.  Reference letters may be sent separately.