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.

[Due to time constraints, the CLR no longer posts on all court of appeals civil opinions].

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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Filed under Commentary

Proposed revisions to CRCP – Public Hearing April 30, 2015

[A message from the CBA Chair of the Litigation Section. A link to a Redline version of the proposed changes is provided below]

Dear Colleagues:

There are, pending before the Colorado Supreme Court, proposed changes to the Colorado Rules of Civil Procedure. Significant changes to Rules 16, 26, 34, 37 and 54 are proposed which raise lots of questions. Do you understand the meaning of “proportionality” as defined in proposed new Rule 26(b)(1)? Can you depose an expert in 3 hours as limited by proposed new Rule 26(b)(4)(A)? Do you agree with the limitations on discovery relative to an expert’s opinion as provided in proposed Rule 26(b)(4)(D)?

The public hearing concerning the proposed rule changes which will be held on April 30, 2015. The Supreme Court is presently seeking public comment about the proposed rules in advance of that hearing. April 17, 2015 is deadline for submission of written public comments.

The Litigation Section Council is working toward formulating comments on behalf of the Litigation Section membership to be submitted to the Supreme Court. If you have comments concerning the proposed rule changes that you would like to have considered by the Council, please submit your comments to Greg Martin the Section’s CBA staff liaison at gmartin@cobar.org no later than March 5, 2015.

A redlined version of the proposed revisions can be found as a link in the Winter, 2015 CBA Litigation Section Newsletter on the CBA website, and are attached to this e-mail. Thank you.

Peter R. Black
Chairperson, CBA Litigation Section Council

2015 proposed rule changes CRCP – redline

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Filed under Administrative, Proceedure

S K Peightal Engineers, LTD, a Colorado corporation; Hepworth-Pawlak Geotechnical, Inc., a Colorado corporation; Steve Pawlak; and Daniel E. Hardin v. Mid Valley Real Estate Solutions V, LLC, 2015CO7 (February 9, 2015)

“Before the home reached the market, the Great Recession struck.” – Opinion.  Here, a series of loan contracts for the construction of a home and a later default resulted in a Deed in Lieu of foreclosure. The home was transferred to a corporate subsidiary of the lender. Lender later sued contractor for negligent construction. The lower courts declined to apply the economic loss rule (ELR) to bar the tort claims. The Court reversed, clarifying that the ELR applies to parties with contract remedies, including third-party beneficiaries who are not subsequent purchasers. Here, the subsidiary was a third-party beneficiary to a contract between the contractor and lender and thus not a “subsequent purchaser.” But, the Court remanded for further fact finding regarding the interrelatedness of the contracts and the scope of the contractual duties to determine if the ELR applies.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SC728.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9655&courtid=2

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Filed under Contracts, Defenses, Judgment, Real Property

Hagan v. Farmers; Ewald v. Farmers; Mayfield v. Farmers Insurance Exchange, 2015CO6 (Jan. 26, 2015)

“In choosing Boulder, the plaintiffs may well have engaged in ‘forum shopping’ … But Rule 98 (c)(1) does not restrict the plaintiff’s choice of venue when the defendant is a nonresident…” Opinion. Relying on its opinion in Sampson v. District Court, 590 P2d 958 (1979), and approving an exemplar affidavit in Dep’t Highways v District Court, 635 P2d 889 (1981), the Supreme Court reversed three trial court orders transferring venue. It held that Boulder was a proper venue and that Defendant Farmers Insurance did not provide sufficient evidentiary support for its request to change venue. Defendant failed to 1) focus on the convenience of non-moving party witnesses and 2) submitted inadequate affidavits that did not contain in sufficient detail: a) witness identity, b) the nature, materiality and admissibility of testimony, and c) how the change would affect the witnesses.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2014/14SA266,%2014SA267,%2014SA313.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9646&courtid=2

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Filed under Insurance, Interlocutory Review, Venue

Hickenlooper, Governor of Colorado v. Freedom from Religion Foundation, Inc., Mike Smith; David Habecker; Timothy G. Bailey; and Jeff Baysinger, 2014CO77 (Nov. 24, 2014)

No harm, no foul. Individuals have standing to sue the government if the government’s actions cause them an injury-in-fact. An injury can be tangible or intangible, but not indirect or incidental. Taxpayers have standing to sue as taxpayers, if the government expenditure is related to the alleged harm. Here, nonbelievers sued over the constitutionality of Colorado’s Day of Prayer proclamations. The Court dismissed not because the proclamations were unconstitutional, but because the Plaintiffs were not injured by them. The incidental expenditure of public funds on overhead was not sufficient to establish taxpayer standing. Plaintiffs also claimed psychic harm by the issuance of the proclamations that politically excluded them by promoting religion, due to their nonbelief. But the government did not coerce, punish, or prevent them from having or changing their beliefs.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC442.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9587&courtid=2

 

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Filed under Constitutional, Proceedure, Standing

Gary Justice, Kathleen Hopkins, Eugene Halaas, Jr., and Robert Laird, Jr. v. The State of Colorado, Governor Hickenlooper, Colorado PERA, Carole Wright, and Maryann Motza, 2014CO75 (Oct. 20, 2014)

A contract is a promise the law will enforce. The Contract Clauses of Colorado’s and the US’s Constitutions protect existing contracts from laws that would later impair their performance. Public employees have received retirement benefits from PERA since 1931. Cost of living adjustments (COLA) began in 1969 and have evolved ever since. In 2000, the statutory COLA rate was 3.5%. In 2010, the legislature changed it to 2%. Employees who retired between 2001 and 2010 sued the State for violating the Contracts Clause, claiming a violation of their contractual right to the 3.5% COLA at the time of their retirement. The Court ruled there was no contract right guaranteeing a particular COLA formula because 1) it has changed repeatedly over time and 2) there is no express intent that the 2000 legislature intended to bind the 2010 legislature regarding the COLA formula for pre-2010 retirees.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC906.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9546&courtid=2

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Filed under Constitutional, Contracts, Government, Governor, State Agency

Colorado Supreme Court to live video stream oral argument in 13SC394 (Brandon Coats v. Dish Network, LLC.)

Coats v. Dish Network (covered by the CLR) raises two issues that have generated a great amount of interest by the public:

Whether the Lawful Activities Statute, Section 24-34-402.5, C.R.S., protects employees from discretionary discharge for lawful use of medical marijuana outside the job where use does not affect job performance.

Whether the Medical Marijuana Amendment makes the use of medical marijuana ‘lawful’ and confers a right to use medical marijuana to persons lawfully registered with the state.

The Lawful Activities Statute protects 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.”

Because demand for seats in the courtroom outweighs availability, the Court will live stream the arguments on the Internet and the Court will live stream the argument in the first floor Court of Appeals courtroom.Tuesday, Sept. 30, 2014, 9 to 10 a.m.

Live video streaming can be accessed through: http://broadcast.coloradorcjc.gov/

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Filed under Commentary

In Re: Colorado Medical Board v. Office of Administrative Courts; Matthew E. Norwood, ALJ, and Polly Train, MD, 2014CO51 (June 23, 2014)

Jeopardy – Answer: a “subpoena” is different from “discovery,” but an “administrative hearing or proceeding” is the same as a “civil suit.” Question – why does CRS 12-36.5-104, establishing the peer review privilege, extend to a subpoena issued in an administrative proceeding? Reviewing this question pursuant to CAR 21, the Court held that the privilege protects all the records of a professional review committee from all subpoenas and all discovery, and renders such records inadmissible in civil suits including administrative proceedings of an adjudicatory nature. In this case, a doctor was denied a Colorado medical license and appealed the denial. She sought certain Letters of Concern issued by the Medical Board. An ALJ issued a subpoena for the letters. The Board objected and then appealed via CRCP 106 and CRS 24-4-106. Because the records were protected, the Board won.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SA209.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9408&courtid=2

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Filed under Administrative, Commissions or Boards, Discovery, Government, Interlocutory Review

Scott Gessler, as Secretary of State v. Colorado Common Cause and Colorado Ethics Watch, 2014CO44 (June 16, 2014)

When the financial burden of state regulation of issue committees approaches or exceeds the value of the financial contributions to a political effort, such regulations may unconstitutionally burden freedom of association. Samson v. Buescher. Colorado’s Constitution art. XXVIII sec. 2(10)(a)(II) and CRS 1-45-108 establish a $200 threshold for registering issue committees and for reporting contributions and expenditures retro- and prospectively (Limits). Samson found the Limits to be unconstitutional as applied to a small-scale issue committee. To address the confusion caused by Samson, Gessler promulgated CCR 1505-6:4.27 (now Rule 4.1), setting the threshold at $5000, applied prospectively only. The Court set aside Rule 4.1 as contrary to the still-valid Limits, which could be constitutionally applied in cases dissimilar from Samson’s $2000 in contributions.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SC783.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9396&courtid=2

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Filed under Administrative, Constitutional, Elections, Separation of Powers

Jason Kelly MD and Mauricio Waintrub MD v. Vasilios Haralampopoulos, 2014CO46 (June 16, 2014)

While the term “treatment” has a prospective focus, the term “diagnosis” does not. – Opinion. After an ER visit, Patient was left brain dead. Afterwards, his roommate asked a doctor if past cocaine use could have been a cause. At trial, roommate’s statement to the doctor was the focus of the defense case. The trial court admitted the evidence and doctors won. The court of appeals held the admission of drug-use evidence was error. The Court disagreed, holding that CRE 803(4), the medical diagnosis or treatment hearsay exception, applied. Statements offered to determine the nature, source or cause of a condition, which also describe medical history and are pertinent to the diagnosis, are excepted, as in this case. No further inquiry into roommate’s motives was required, nor was subjective reliance by the doctor. And, though prejudicial, the statements were not unfair. Doctors win.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC889.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9398&courtid=2

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Filed under Evidence, Experts, Personal Injury