Monthly Archives: November 2012

In the Interest of Madrone, 2012CO70 (November 27, 2012)

Families fragmented across state lines make child-custody determinations hard. In this case, a family brought their 4-year-old daughter to Colorado from Oregon. In less than 6 months, the family broke up, and the child eventually ended up out-of-state. The trial court found that based on the intent of the parents to indefinitely reside in Colorado, it had jurisdiction. The Supreme Court reversed because parental intent is not the proper test. Instead, the UCCJEA provides the exclusive jurisdictional basis for child-custody decisions. That framework starts with an analysis of “home state” jurisdiction. If no state has home state jurisdiction, there are 3 alternative tests for jurisdiction in Colorado: 1) “significant connection,” 2) “more appropriate forum,” or 3) “last resort.” Here, the trial court did not properly apply the UCCJEA, so the case was remanded to do so.

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Filed under Family Law

General Steel Domestic Sales, LLC, d/b/a General Steel Corp. et. al., v. Harold Bacheller, III, 2012CO68 (November 27, 2012)

The First Amendment does not protect purely private arbitration from abuse of process claims when arbitration is not an activity involving the government. In this case, a former Employee wins a binding arbitration against an Employer who brought a claim for violation of an employment contract. Employee sued for abuse of process, malicious prosecution, and civil conspiracy. The trial court did not instruct the jury on the heightened burden on plaintiffs to show that the arbitration lacked a reasonable factual basis on all three claims. The jury found for the Employee and the court awarded treble exemplary damages. The Supreme Court upheld both the decision not to apply the heightened standards to purely private arbitration and its discretionary decision to treble exemplary damages based on in-house counsels’ willful and wanton abuse of litigation and discovery procedures.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2010/10SC403.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8762&courtid=2

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Filed under Constitutional, Torts

In the Matter of Michael T. Miranda, 2012CO69 (November 27, 2012)

An attorney convicted of a felony is automatically disqualified from practicing law until the sentence is completely served, including parole. In this original proceeding in discipline, the Supreme Court reversed a Hearing Board conditional reinstatement of an attorney convicted of DUI/manslaughter and sentenced to 8 years in prison and 5 years of parole. The attorney sought, and was granted, reinstatement to the practice of law while still on parole. The Attorney Regulation Counsel appealed reinstatement, arguing that CRS 18-1.3-401 barred reinstatement as a matter of law. The Court agreed, emphasizing that parole is merely non-physical confinement, but not release from custody. Therefore, until such time an attorney on parole has completed the full sentence and is unconditionally released from custody, he cannot be reinstated to the practice of law.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SA112.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8763&courtid=2

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Filed under Attorney Regulation

Colorado celebrated Thanksgiving twice in 1939

The CLR wishes all its followers a Happy Thanksgiving. To relieve the anticipation of the CLR’s next scintillating post, here is a short, 750 character review of the History of the Thanksgiving Holiday:

Thanksgiving is steeped in US history, starting with the familiar three-day feast between the Pilgrims and the Wampanoag tribe in 1621. In 1789 George Washington held a national day of thanks. Hoping to create a sense of national unity, Sarah Josepha Hale, author of “Mary Had a Little Lamb” convinced Lincoln to issue the first Proclamation making it a national annual holiday in 1863. In 1939, businesses wanted a longer shopping season. FDR accommodated and moved the day from the last day of November to the second to last. In the confusion, school calendars, football games, and individual states all had to choose what day to celebrate. Colorado and Texas were the only two states to celebrate both days. The extra week of shopping had no measurable effect on spending. In 1941, Congress declared Thanksgiving to be the fourth Thursday of November.

http://www.loc.gov/wiseguide/nov02/thanks-when.html

http://history1900s.about.com/od/1930s/a/thanksgiving_2.htm

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Mark Shoen v. Dr. Samuel Shoen, 2012COA207 (November 21, 2012)

“[T]here is great general interest among television viewers in fascinating true stories with interesting characters and real life dramas … this case certainly has those elements.” A producer of a TV episode called Tragedy in Telluride said that about the facts of this case. In that episode, Sam Shoen implied his brother Mark Shoen, both part of the U-Haul family, was involved in the murder of Sam’s wife. Mark sued Sam for defamation and lost. The court of appeals first held that Mark waived a choice-of-law issue that Colorado defamation law should not apply because the issue was not raised prior to the trial court ruling on dispositive motions. Second, it held that Sam’s statements on TV about the murder of his wife, including criticizing the adequacy of the investigation, were matters of public concern, and thus Mark was required to prove defamation by clear and convincing evidence.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2553-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8757&courtid=1

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Filed under Evidence, Torts

In re the Estate of Sheldon Beren, deceased; Bev Beren, Zev Beren, Jonathan Beren, and Daniel Beren v. Robert Goodyear as Personal Representative, Miriam Beren, and Joshua Beren, Dena Beren Grossman, and the Estate of Cheryl Beren Feldberger, 2012COA203 (November 21, 2012)

A complicated life can mean a complicated death. Beren died testate in 1996, leaving his first wife and their 4 sons, a second wife (Wife), her two sons (which he adopted) and their biological child. Wife took an elective share in lieu of taking under the will. The probate court awarded Wife an equitable adjustment to her elective share, due to appreciation during the long probate, and approved the personal rep’s final distribution plan creating 2 classes of stock in Beren’s company. The court of appeals, addressing these and other issues, held CRS 15-11-201 does not permit equitable adjustments to elective shares; they are a set dollar amount calculated on the date of death. Also, the 2 classes of stock did not provide each child with an equal share of the estate. The court otherwise affirmed the probate court’s order, including compensation of over $17 million to the representative.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/10CA2120-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8753&courtid=1

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Filed under Appellate Review Challenged

Gail Collard v. Vista Paving Corporation, 2012COA208 (November 21, 2012)

Wile E. Coyote never got the Road Runner to smack into his wall painted like a road. Here, City hired Vista to construct medians in the middle of a road. The medians were completed by Vista and accepted by the City. For a while, the double yellow stripes led straight into the median, where plaintiff crashed her car. She sued Vista under both the PLA and common law negligence. After rejecting the application of the PLA because Vista was not a “landowner,” the court of appeals adopted new construction liability standards. It rejected the “completed and accepted” doctrine under which construction companies owed no duties to third parties after completing work. The court adopted a “foreseeability rule” making companies potentially liable even after work is completed, if it would be unreasonable to expect another party to mitigate a danger. The case was remanded to apply the new standard.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0153-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8758&courtid=1

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Filed under Appellate Review Challenged, Government, Personal Injury, Torts

People in the Interest of A.V. and J.V., Children, and Concerning M.V., 2012COA210 (November 21, 2012)

“You can lead a horse to water, but you can’t make it drink.” This statement is a sad reality when attempting to rehabilitate parents before terminating their parental rights. In this case, a child enrolled in the Cherokee Nation was adjudicated dependent and neglected and removed from the mother’s care. The trial court entered a treatment plan for Father, who was addicted to drugs. Father was provided with substance abuse services and treatment, parenting education, supervised visits, and other help—all to no avail. Three years later, Father’s parental rights were terminated. On appeal, Father argued that “active efforts” were not made to rehabilitate him as required by the Indian Child Welfare Act. The court of appeals upheld the termination, and noted the Act does not require expert testimony to support a finding that active efforts were made and were later unsuccessful.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0829-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8760&courtid=1

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In re the Marriage of James Nelson and Gricela Nelson, 2012COA205 (November 21, 2012)

A divorce can be an end or a beginning. In this case, it was neither. Substantively, this appeal concerned a modification of a prior award of spousal maintenance (a/k/a alimony) and awarded the ex-wife maintenance until remarriage, age 65, or death. Both parties sought attorneys’ fees. Ex-husband appealed before the trial court ruled on the fees motions. Over a dissent, the court of appeals held it had jurisdiction notwithstanding the lack of an order on the fee issues as it would not affect the maintenance decision. Addressing the merits, the court 1) declined to use the child support formula to calculate husband’s income, 2) agreed that the debilitating effects of fibromyalgia on ex-wife, and the ex-husband’s increased income supported a finding of substantial and continuing change, justifying additional maintenance, and 3) affirmed the retroactive award of maintenance.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2272-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8755&courtid=1

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Filed under Appellate Review Challenged, Family Law

In Re Estate of Jeffrey Johnson, deceased, Laurel Christensen v. Dawn Wilson, Personal Representative, 2012COA209 (November 21, 2012)

As your life changes, so should your insurance. This case involves a marriage, life insurance, divorce, and death – in that order. Ex-wife sought life insurance proceeds on a policy to which she was named a beneficiary while married. The trial court dismissed her claims and the court of appeals affirmed. CRS 15-11-804 revokes any revocable disposition of property made to a former spouse, including designations in insurance policies. The divorce removed ex-wife as a beneficiary under the policy. Policy language that requires written notice to change beneficiaries did not abrogate the statute because: 1) regulations created an expectation the law would apply, 2) the parties’ rights are not impaired by the law, and 3) the policy does not expressly exempt automatic revocation. Similarly, the policy could not be reformed because ex-wife lacked standing upon revocation.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0191-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8759&courtid=1

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Filed under Contracts, Family Law, Insurance