Monthly Archives: September 2012

In Re Parental Responsibilities of M.W., a Child, and Concerning Shane Taylor v. Trista Wamsher and Edward Day 2012COA162 (September 27, 2012)

“Modern Family,” “The New Normal” and “Parenthood” show unique circumstances involving relationships between children and non-biological parents. So does this case. Mother’s former boyfriend becomes the psychological parent of mother’s child. After they break up, biological father shows up. After a hearing to allocate parental responsibilities, the trial court found: 1) parents were fit and would make decisions in the child’s best interest, 2) boyfriend had standing, and 3) there were unique circumstances, but boyfriend could not be awarded any parental responsibility. The court of appeals reversed. Nonparents are not required to show that parents are unfit. Rather, a trial court may, under Troxel v. Granville, allocate parental responsibility to a nonparent who has standing, can show unique circumstances, and that it would be in the best interests of the child.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0771-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8679&courtid=1

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Filed under Family Law

Kyle Larson Enterprises Inc., Roofing Experts v. Allstate Insurance Co. 2012COA160 (September 27, 2012)

Repair vendors such as roofers, who are entitled to insurance payments for work done on behalf of an insured party like a homeowner, can sue the insurance company as if they were the homeowner, for unreasonable delay or denials of payment. In this case, homeowners contracted with a roofer to make repairs. The homeowners’ insurer approved initial repairs and costs, but the roofer later made additional repairs that were necessary to comply with building codes and maintain manufacturer warranties.  The insurance company refused to pay for the additional repairs. Roofer sued as a first-party claimant under C.R.S. 10-3-1115 claiming an improper denial of claims. The trial court dismissed that claim. The court of appeals reversed, finding that the insurance company’s involvement with roofer’s repairs, completed “on behalf of” the homeowners, made the roofer a first-party claimant.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2205-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8677&courtid=1

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Kyle Larson Enterprises Inc., Roofing Experts v. Allstate Insurance Co. 2012COA160 (September 27, 2012)

Repair vendors such as roofers, who are entitled to insurance payments for work done on behalf of an insured party like a homeowner, can sue the insurance company as if they were the homeowner, for unreasonable delay or denials of payment. In this case, homeowners contracted with a roofer to make repairs. The homeowners’ insurer approved initial repairs and costs, but the roofer later made additional repairs that were necessary to comply with building codes and maintain manufacturer warranties. The insurance company refused to pay for the additional repairs. Roofer sued as a first-party claimant under C.R.S. 10-3-1115 claiming an improper denial of claims. The trial court dismissed that claim. The court of appeals reversed, finding that the insurance company’s involvement with roofer’s repairs, completed “on behalf of” the homeowners, made the roofer a first-party claimant.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2205-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8677&courtid=1

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Portercare Adventist Health System v. Robert Lego, 2012CO58 (September 24, 2012)

Two months into a three-month hospital stay, a health insurance company stopped paying the bills of the wife of the Respondent. Four years later the hospital sought to collect the amount owed. The Defendant/Respondent claimed that the 3 year statute of limitations should apply and bar the claim. The hospital argued the bill was a “liquidated debt” and therefore subject to the 6 year statute of limitations. The Court reversed the court of appeals citing Rotenberg v. Richards, 899 P.2d 365 (Colo. App. 1995) nine times in a 23 paragraph opinion. It held that in the context of hospital bills, a “liquidated debt” is one ascertainable from the contract itself, or by simple calculation using extrinsic evidence if necessary. Here, because the hospital used a pre-determined market standard and uniform rate subject to disclosure to all patients, the debt was ascertainable using simple math.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2010/10SC765.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8671&courtid=2

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Filed under Contracts

Cantina Grill, JV, et. al, v. City and County of Denver, 2012COA154 (September 13, 2012)

One theory about the fall of the French monarchy is that its taxation system was inefficient.  In this case, Denver assessed taxes on concessionaires in DIA. DIA, as a city entity, is exempt from ad valorem (property) taxes. However, private possessory interests in property located on exempt property may nonetheless be taxed. Case law defines a possessory interest as taxable if: 1) revenues are provided by private sources, 2) owner can exclude others, and 3) ownership lasts long enough for a private benefit. According to the court of appeals here, the Colorado Constitution imposes the tax, but the methodology for assessing taxes on possessory interests is statutory. Here, the court rejected the concessionaires’ constitutional challenge to the statute and the court held that the concessionaires had a taxable possessory interest. Accordingly, the concessionaires were taxed.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2270-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8664&courtid=1

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Henderson v. City and County of Denver 2012COA152 (September 13, 2012)

Pay attention to signs telling you to move your car for street sweeping. In this case, a street sweeper backed into a parked car and the owner sued Denver. Under the Governmental Immunity Act, if the street sweeper is a “motor vehicle,” Denver could be sued; if it is “mobile machinery” the city is immune. The two categories are mutually exclusive, and, the court held, the answer is determined by the design and use of the equipment. “Motor vehicles” are designed and used to transport people and property on highways. “Mobile machinery” is designed to maintain the highways, not to transport people or property over them. The court of appeals, noting that a dump truck with a snowplow blade is a motor vehicle, determined that a street sweeper is merely mobile machinery. Denver was, therefore, immune from suit for the damage caused by the street sweeper.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2068-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8662&courtid=1

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Filed under Government, Torts

Chittenden v. Colorado Board of Social Worker Examiners, 2012COA150 (September 13, 2012)

Question: “Are you saying ‘no’ just to say ‘no’?” Answer: “No.” In this case, a complaint against a social worker led the Board of Social Worker Examiners to believe that a violation may have occurred. Instead of disciplining her, the Board made her a settlement offer. The social worker did not accept or reject the offer. Instead, she requested a declaratory order as to whether she could even be disciplined for her actions. The Board refused to issue a decision on that question. The social worker appealed the refusal to make a decision. To be appealable, an agency action must be an “action subject to judicial review.” For the first time, the court of appeals held that, to be appealable, an agency’s decision must be a final agency action. Here, a refusal to make a decision was not a final decision because the social worker’s disciplinary matter was still pending before the Board.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1872-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8660&courtid=1

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Filed under Administrative, Appellate Review Challenged, Government

Unpublished Court of Appeals Opinions Now Available

As shared by the Solo in Colo blog (thanks for the tip!) it is now possible to obtain unpublished Court of Appeals opinions.  Fill out the request form HERE.  If you have any District court opinions related to any of the appellate decisions discussed here, send the CLR a copy and we will link it to our post.  You can also share your comments and thoughts about the outcome of the case.

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Churchill v. University of Colorado at Boulder, 2012CO54 (September 10, 2012)

Suing for civil rights violations is complicated. Concluding a years-long controversy regarding the termination of Ward Churchill, the Supreme Court held that the CU Regents were absolutely immune from suit for claims arising from his termination. Churchill was given 5 internal hearings, presented evidence, examined witnesses, and made arguments under a clear standard of review. The Court held that the Regents are immune from suit for their quasi-judicial decisions. Plus, CRCP 106 review can also prevent constitutional violations. The acrimony between CU and Churchill meant that reinstatement plus wages was not equitable or justified. Finally, even if the investigation was bad faith retaliation for free speech, there is no clear law on that point, so, the Regents could not know if they actually violated his Constitutional rights, and thus also had qualified immunity.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC25.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8655&courtid=2

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Filed under Constitutional, Government

In the Matter of Attorney F, 2012CO57 (September 10, 2012)

A momentary lapse of reason is not just a Pink Floyd album. In this case, during trial, a prosecutor allowed a witness to testify falsely that she did not have a meeting with the prosecutor during a break in her testimony. Later, when asked by defense counsel, the prosecutor did not reveal the meeting with the witness. Later, realizing the gravity of the situation, the prosecutor notified the court, which reported her to the disciplinary board. The board found that the prosecutor made a knowing misrepresentation in violation of C.R.P.C. 8.4. Although reluctant, the board felt compelled to impose a public sanction. The Court reversed, though not disagreeing with the discipline. Rather, the Court emphasized that the board has full discretion in all situations to impose the sanctions it believes are appropriate. The Court remanded to allow the board to exercise its full discretion.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SA343.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8654&courtid=2

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Filed under Attorney Regulation