Monthly Archives: January 2013

Health Grades, Inc. v. Christopher Boyer and Patrick Singson, 2012COA196 (November 8, 2012)

UPDATE: On January 31, 2013, the court of appeals modified its original opinion to include an entire section addressing a motion for rehearing by the Defendants. Defendant employees asserted the court should rehear the case. They argued that on remand they should not be subject to meeting a heightened standard of proof for sham litigation claims (arising from First Amendment protections for litigation activity) for their claims. They based the petition in part on the Supreme Court’s subsequent decision in General Steel Domestic Sales v. Bacheller, 2012CO68 (Nov. 27, 2012). The court denied rehearing and declined to withdraw the original opinion, holding that General Steel did not decide the issue of whether the heightened standard applied to private party disputes brought through a judicial proceeding.

REVISED OPINION: http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1829%20modified-PD.pdf

Original Post:

“Sham litigation.” A cynic would call that phrase redundant. However, the First Amendment protects the rights of individuals to have their claims decided in civil courts, unless they are devoid of a reasonable factual basis; such claims are an abuse of process. In this case, Employer sues former Employees who allegedly started a competing business. Employees counterclaim stating the Employer’s case is an abuse of process. A jury dismisses all claims and finds in favor of defendant Employees on the counterclaim. Employer argues that because their claims went to the jury, they could not have been devoid of a reasonable factual basis, so the counterclaim should have been dismissed. The court of appeals held that the trial court erred by allowing the jury to decide the counterclaim, and remanded for the trial court to determine if Employer’s claims had a reasonable factual basis.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA1829-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8735&courtid=1

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Filed under Constitutional, Torts

Target Corp. v. Prestige Maintenance USA, 2013COA12 (January 31, 2013)

At the heart of contract law is a principle of risk management and allocation. This case involves Prestige indemnifying Target for injuries caused by a Prestige employee. Target sued Prestige after its employee fell and claimed workers’ compensation. The trial court found for Target and awarded damages for past and future damages. Prestige appealed the award of future damages. The court of appeals held: 1) future damages are a substantive issue, not one of judicial administration, so MN law applied as stated in the contract. But, CO law applied to matters regarding the conduct of the litigation: whether an issue was preserved for appeal and the standard of review; 2) the issue was preserved because future damages were addressed during closing and by the court; 3) the award was supported by evidence that the damages were reasonably likely to occur as estimated by an expert. Affirmed.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0445-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8815&courtid=1

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Filed under Appellate Review Challenged, Contracts, Evidence, Personal Injury, Torts

In Re: Parental Responsibilities Concerning M.D.E., and Concerning Bernice M. Spencer, Intervenor, and Scott Rottler, Petitioner, 2013COA13 (January 31, 2013)

Grandparents are great; but great-grandparents are not “grandparents.” Following the dissolution of a marriage, the grandmother of a child’s mother (Great-grandmother), sought visitation rights. Father objected. The trial court allowed Great-grandmother to intervene to seek visitation. Father obtained interlocutory review pursuant to CRS 13-4-102 and CAR 4.2. The court of appeals reversed. Under CRS 19-1-117 and CRS 19-1-103(56) a “grandparent” is “a person who is the parent of child’s father or mother.” Great-grandparents are not such a person. Although the Children’s Code is liberally construed in favor of the best interests of the child, unambiguous language, combined with the protection of parents’ rights under Troxel v. Granville, do not permit an expansion of the definition of grandparent. Thus, Great-grandmother lacked standing to seek visitation.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA2482-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8816&courtid=1

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Filed under Family Law, Interlocutory Review

Richard Bedor v. Michael Johnson, 2013CO4 (January 22, 2013)

The Sudden Emergency Doctrine is now abolished in Colorado. So held the Supreme Court in this case. This decades-old doctrine instructed that people confronted with a sudden unexpected circumstance are not required to use the same judgment as under normal circumstances. In 2011, the Court seemed to re-affirm the doctrine. But, as pointed out in one dissent, nothing has changed since 2011. The doctrine of stare decisis would normally maintain the established rule; but not here. The facts were this: car slid on a patch of ice and hit another car. The jury was given the sudden emergency instruction and found for Defendant; the court of appeals affirmed. After finding it was an error to give the instruction, the Court abolished the rule. Noting that juries already assess the reasonableness of actions under the circumstances, the Court held it is no longer useful and may be misleading.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2010/10SC65.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8805&courtid=2

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Filed under Evidence, Personal Injury, Torts

Federal Deposit Insurance Corporation [as Receiver for Community Banks] v. Yale Fisher, 2013CO5 (January 22, 2013)

There is an old saying, “Banks will only lend money to people who don’t need a loan.” Actually, banks normally off-set the risk of non-payment by adding a 36% default interest rate. But in this case, the original agreement did not include 36% default interest. A series of later modifications added a 36% default rate, but without noting it as a changed term. That seemed to make the rate ambiguous. The Supreme Court disagreed, finding the later modifications unambiguously included the 36% rate. The Credit Agreement Statute of Frauds, CRS 38-10-124, allows for extrinsic evidence to be considered to resolve ambiguous credit agreements. Here, extrinsic evidence suggested that the 36% rate was only added later as a computer error. However, as the contract was unambiguous, the statute didn’t apply and the evidence could not be considered. The borrower owed 36% on the defaulted amount.

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Filed under Contracts, Evidence

L.A.N., a/k/a L.A.C., by and through her Guardian ad Litem; and The People in the Interest of Minor Child L.A.N., a/k/a L.A.C., v. L.M.B., 2013CO6 (January 22, 2013)

How does a minor-child shield his or her secrets, told to a psychotherapist, during a dependency and neglect proceeding? Normally, parents “hold” the child’s psychotherapist-patient privilege, and the right to waive that privilege on behalf of their children. But in a termination proceeding, parents have a conflict of interest. Three others could hold the child’s privilege: the department of human services, the juvenile court, or the guardian ad litem (GAL). The Court’s answer, under CRS sections 13-90-107 and 19-3-311, is the GAL. If waived, the court determines the scope, balancing various factors, seven of which were identified by the Court. The process for a GAL to withhold information is familiar: the GAL serves a privilege log, and then, if necessary, the court conducts an in camera review. The Court remanded this case for a determination of the scope of a GAL’s waiver.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC529.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8808&courtid=2

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Filed under Evidence, Family Law, Government

8th, 9th, and 10th Graders have an opportunity to meet United States Supreme Court Justice Sonia Sotomayor

From the Colorado State Judicial Branch:

From 8:00 a.m. to 10:00 a.m. on May 2, 2013, 100 students in the 8th, 9th, and 10th grades from all over Colorado will have the opportunity to hear United States Supreme Court Justice Sonia Sotomayor speak and ask her questions at the new Ralph L. Carr Colorado Judicial Center located at 2 East 14th Avenue, Denver, Colorado 80203. Students will also have the opportunity to meet their state senator and representative.

If you are a student in the 8th, 9th or 10th grade and are interested in applying to attend the event, please fill out an application online.

http://www.courts.state.co.us/sotomayorevent/

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Alpenhof, LLC, v. City of Ouray, 2013COA9 (January 17, 2013)

Nature causes disasters; humans just fail to prevent them. Case in point: Hurricane Katrina. So, when Ouray reviewed the plans of a Developer to build in an area prone to flooding from a diverted natural waterway, it found the risk to be a “geologic condition” or a “natural hazard.” They required Developer to take significant mitigation measures to which Developer objected and then challenged in court under CRCP 106. The court of appeals rejected Developer’s challenge because Ouray had the authority and discretion to enforce a code requiring flood mitigation to preserve the public’s health, safety and welfare, even though some risk came from a structure built by Ouray. As a matter of municipal litigation practice, the court also made a specific point about not taking judicial notice of ordinances not included in the record. Ouray’s denial of Developer’s application was upheld.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0500-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8803&courtid=1

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Filed under Administrative, Government

Holly Averyt v. Wal-Mart Stores, Inc., 2013COA10 (January 17, 2013)

Time is money, especially to a judgment creditor. Here, a jury found for Plaintiff in a slip-and-fall case. But the trial court vacated the judgment and ordered a new trial. Plaintiff appealed to the Supreme Court, which reinstated judgment. The trial court awarded damages and post-judgment interest at the statutory rate of 9%. On appeal again, Defendant argued that the correct post-judgment interest rate should be the market-based rate, currently at 3%, used if a judgment debtor appeals. The court of appeals disagreed, holding that CRS 13-21-101’s appealing-judgment-debtor market rate does not apply to a judgment creditor who appealed after judgment was vacated, because a favorable judgment had been entered. Separately, though Defendant’s challenge to the sufficiency of the evidence was unsuccessful; it was not groundless or frivolous, so attorney fees were not awarded.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/12CA0644-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8804&courtid=1

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Filed under Evidence, Personal Injury, Torts

Stan Clauson Associates v. Colemen Brothers Construction, Coleman Ranch, Dan Coleman, 2013COA7 (January 17, 2013)

“We are all professionals here…” But not if you are a land planner. In this case, a developer hired a land planner to help develop a property. Eventually, the planner sued the developer for breach of contract, who counter-sued for negligence. The counterclaim was dismissed based on the economic loss rule. That rule dismisses tort claims that are really contract claims, unless there is an independent tort duty outside of contract duties. Professionals owe independent tort duties consistent with other members of the profession and not just a duty to substantially perform under the contract. CRS 12-1.5-101 et. seq. lists 45 professions. The common law will recognize a duty only if the risk, likelihood of loss, burden, and consequences justify imposing a higher duty. The court of appeals held land planners are not professionals so the economic loss rule barred the counterclaim.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2012/11CA2555-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8801&courtid=1

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Filed under Contracts, Torts