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

William G. Strudley and Beth E. Strudley v. Antero Resources Corporation, Antero Resources Piceance Corporation, Calfrac Well Services Corporation, and Frontier Drilling, LLC, 2015CO26 (April 20, 2015)

The general life cycle of civil litigation: Complaint, Answer, Disclosures, Discovery, Trial. In this case, before the court would allow full discovery, it required the plaintiffs to provide prima facie evidence to support their toxic tort allegations of exposure, injury, and causation arising from the proximity of natural gas drilling operations near their home. Finding the plaintiffs’ evidence lacking, the court dismissed their case entirely. The court of appeals reversed holding that the modified case management order issued by the trial court was not authorized by CRCP 16. The Court agreed, “tapping the brakes,” as the dissent describes it, on active case management. The Court held that CRCP 16, in the context of Rules like 12, 37, and 56, does not authorize a court to fashion its own summary judgment-like filter and dismiss claims during the early stages of litigation.

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SC576.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9738&courtid=2

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Filed under Case Management, Discovery, Judgment, Proceedure, Torts

Barbara Jordan v. Panorama Orthopedics & Spine Center, PC., 2015CO24 (April 13, 2015)

♪This land is your land, it’s not my land, I’m not a landowner, so you can’t sue me… Plaintiff tripped and fell on common area sidewalk outside a medical campus. She sued the main tenant. Under the Premises Liability Act (PLA), only “landowners” could be liable for injuries on their land. There are two kinds of landowners: those in possession of the land, and those who are legally responsible for conditions on the land. This case addressed the second category and limited its scope. Here, under its lease, the defendant could not exclude anyone from occupying the land, was not responsible for maintenance or the condition of the sidewalk, and was not conducting any activities on the sidewalk; it also did not assume a duty to repair the sidewalk or create the condition that caused the injuries. Under these facts, the Court held the commercial tenant was not a landowner.

https://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2013/13SC545.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9734&courtid=2

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Filed under Defenses, Personal Injury, Real Property, Torts

Westin Operator, LLC v. Jillian Groh, through her guardians and conservators William and Janelle Groh, 2015CO25 (April 13, 2015)

“A reasonable person could foresee that a group of intoxicated individuals evicted from a hotel might be involved in a drunk driving accident that causes injuries.” Opinion. The Court affirmed the court of appeals’ ruling that hotels owe guests a duty of care not to evict them into a foreseeably dangerous environment, taking into account the guest’s physical state and the conditions into which she is evicted, including the time, surroundings and weather. Liability is limited by challenging the causal connection to the injury or by blaming other contributing factors. Whether an act caused an injury is fact-specific making summary judgment for the hotel improper. The dissent agreed the duty existed. But here, the plaintiff walked past two taxis. If the availability of alternative transportation is not sufficient to grant summary judgment for the hotel, then all cases go to a jury.

https://www.courts.state.co.us/Courts/Supreme_Court/Case_Announcements/Files/2015/063589APR.13.15.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9733&courtid=2

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Filed under Defenses, Evidence, Judgment, Personal Injury, Torts

Colorado Supreme Court grants certified question of law

PURSUANT TO C.A.R. 21.1, the Court granted a certified question posed by the United States Bankruptcy Court, for the District of Colorado in No. 15SA68, In re Michael and Marlene Heimann.

This post will be updated when more information about the issue certified becomes available.

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Filed under Commentary, Debt

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