Monthly Archives: April 2013

New Certiorari Grant plus a near-grant

The Colorado Supreme Court granted certiorari in one case today involving the governmental immunity act : Marilyn Daniel v. City of Colorado Springs, 2012COA171. As noted in the comments to the CLR summary of the court of appeals’ opinion, this case is related to other cases pending before the Court addressing what constitutes a “public facility.”

JUSTICE COATS and JUSTICE EID would have granted Sonitrol Corporation v. Core-Mark Midcontinent, Inc.; et. al. Court of Appeals Case Nos. 10CA2289 & 11CA369 (April 29, 2013) to address two issues concerning a cause of action for willful and wanton breach of contract, one of which was framed in terms of whether the court of appeals erred in applying its “own notions of public policy … contrary to Colorado’s public policy of protecting freedom of contract and allocation of risk.”

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Filed under Contracts, Government, Personal Injury

Chief Justice Michael L. Bender’s Message for Law Day

Click HERE for the text of the Chief Justice’s Message for Law Day 2013.

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Filed under Commentary

Nathan J. Dunlap v. Colorado Department of Corrections and Roger Werholtz as Interim Executive Director, 2013COA63 (April 25, 2013)

Just before Nathan Dunlap is put to death, now set for the week of August 18, 2013, the Warden will disconnect the telephone in the execution room and the witness-viewing window curtain will be opened. Department of Corrections (DOC) Regulation 300-14 sets forth the procedures for carrying out a death sentence by lethal injection, but it was not promulgated pursuant to CRS 24-4-101 to 108 – the Administrative Procedures Act (APA). Dunlap sought an order invalidating the Regulation for failure to follow the APA. The Regulation was exempted from the APA, and thus valid, because CRS 17-1-103 and 111, granting the DOC with authority to manage, supervise and control inmates, and to administer sentences imposed by the courts, exempts the DOC from the APA. A partially dissenting judge would have ordered full disclosure of the Regulation to allow courts to make a more informed decision.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA0955-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8923&courtid=1

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Filed under Administrative, Government

Brandon Coats v. Dish Network LLC, 2013COA62 (April 25, 2013)

Despite rumors to the contrary, the use of medical marijuana is not a “lawful activity” under Colorado law; at least not under CRS 24-34-402.5, the Lawful Activities Statute protecting 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.” Although defendant defeated plaintiff’s claim, it was not entitled to attorneys’ fees pursuant to CRS 13-17-201, mandating fee awards, because the claim was not a “tort.” First, it is not an invasion of privacy tort and second, it lacks the general characteristics of a tort.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA0595%20&%2012CA1704-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8922&courtid=1

CERTIORARI GRANTED

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Filed under Appellate Review Challenged

Jason L. Rodgers and James R. Hazel v. Board of County Commissioners of Summit County, 2013COA61 (April 25, 2013)

“Plaintiffs … a same-sex couple, primarily contend the County treated them differently from heterosexual couples when interpreting and enforcing [septic] regulations.” (Opinion). Plaintiffs sued. The trial court dismissed some claims and granted a partial directed verdict by removing certain “actions” from a single claim under 42 USC 1983 (1983). The court of appeals reversed in part, holding that under CRCP 50, a trial court can’t parse evidence supporting a single claim against a single defendant. But it affirmed the trial court’s dismissal of 1) an inverse condemnation claim (taking property through regulation) because the regulations did not rise to the level of a taking, 2) a discrimination claim not brought to the Civil Rights Commission as required, and 3) a direct constitutional challenge because 1983, CRCP 106, and CRS 24-10-118 provide alternate remedies.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA0457-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8921&courtid=1

CERTIORARI GRANTED

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Filed under Administrative, Constitutional, Evidence, Government, Proceedure, Property

Tarco, Inc., v. Conifer Metropolitan District, 2013COA60 (April 25, 2013)

Count the negatives: “noncompliance with nonclaim statutes deprives a court of subject matter jurisdiction” (Opinion), and CRS 38-26-106 is not a nonclaim statute. That statute requires public-works-project contractors to post a bond. Here, Tarco did not post a bond when constructing an overpass and infrastructure around a shopping center for the Conifer Metro District (CMD). It did not get paid by CMD and sued. The District, after a two-year delay, claimed that Tarco couldn’t sue because of its noncompliance with the statute. The trial court dismissed Tarco’s claims. The court of appeals reversed in part, holding: 1) CMD’s pleadings didn’t prejudice Tarco, 2) the contracts were for “public works” under the statute, 3) the statute is not a nonclaim statute, 4) the CMD lacked the power to waive the bond requirement, and 5) fact issues saved Tarco’s equitable estoppel argument.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA0250-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8920&courtid=1

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Filed under Contracts, Government, Proceedure

In re the Estate of Charles Erroll Hossack, deceased, Gladys Robinson v. Lori Hossack and Kirk Hossack, 2013COA64 (April 25, 2013)

A contempt of court order issued to compel compliance cost $231,300. Before 1995, CRCP 107 limited remedial contempt fines paid to parties; anything in excess of actual damages, costs and fees was outside the court’s jurisdiction. The 1995 amendments and the current rule now permit a fine paid to a party to exceed the damages caused by the contempt. Here, appellant was ordered to return property to decedent’s children; she disobeyed the order. The trial court issued a continuing fine of $100/day that grew to $1000/day after continued non-compliance. She claimed the trial court lacked jurisdiction and, under CRCP 60, the judgment was void. The trial court disagreed. The court of appeals also rejected her arguments and the pre-1995 cases on which she relied because Rule 107 now permits such fines. The trial court had jurisdiction, and thus properly denied relief under CRCP 60.

http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion/2013/12CA1465-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8924&courtid=1

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Filed under Proceedure

Mile High Cab, Inc. v. Colorado Public Utilities Commission and SuperShuttle International Denver, Colorado Cab Company, and MKBS, LLC 2013CO26 (April 22, 2013)

Proof by a preponderance of the evidence means probable not possible. Here, a taxi service sought a Certificate of Public Convenience and Necessity from the Public Utilities Commission so it could operate in Denver. Existing taxi companies objected, claiming another taxi service would cause oversupply in the market and not lead to robust competition. An ALJ concluded there was a significant “possibility” the objectors were right. The PUC affirmed, using “possibility” and “probability” interchangeably. The Court held that “probable” expresses higher confidence than “possible,” and is closer to “preponderance.” Thus, objectors must prove, and the PUC must clearly manifest an intent to apply a preponderance standard to find that a Certificate was not required, and issuing one would actually be detrimental. The PUC did not do so; the denial of the Certificate was reversed.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SA312.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8912&courtid=2

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Filed under Administrative, Evidence, Government, Proceedure

In the Matter of Attorney G, 2013CO27 (April 22, 2013)

Like the thunk of a mechanical stamp on a wooden desk denying a passport application, the outcome of this case reverberates with the caption: “Rationale Disapproved.” An immigration attorney’s (“G”) representation is paid by the wife of a foreign citizen in deportation proceedings. The client was deported with an unpaid balance. G, who had obtained possession of the wife’s passport, kept it to secure payment pursuant to CRS 12-5-120, the retaining lien statute. The Attorney Regulation Counsel filed an ethics complaint under Colo. RPC 1.15(b) & 1.16(d). The Board dismissed since holding the passport was not impermissible. Exercising its plenary authority over attorney disciplinary matters, the Court determined that 12-5-120 doesn’t permit a lien on a passport, as it is the property of the federal government, not the client. Dismissal was upheld, but for different reasons.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SA239.pdf
http://www.cobar.org/opinions/opinion.cfm?opinionid=8911&courtid=2

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Filed under Appellate Review Challenged, Attorney Regulation

In Re: Gateway Logistics, Inc. and Gateway Freight Solutions, Inc. v. Christopher Smay, Republic Cargo, and Republic Freight, 2013CO25 (April 15, 2013)

“If you want to keep a secret, you must also hide it from yourself.” – George Orwell. In this interlocutory appeal, the Court reviewed an order by the trial court to allow the plaintiffs to inspect personal and business computers, smartphones, other electronic devices belonging to the lead Defendant (and his wife, who is not a party to the case), and approximately three years of defendants’ telephone records. The Court, making the rule absolute (reversing the trial court and remanding the case) held: 1) the assertion of privacy requires a trial court to apply the balancing test in In Re District Court and failing to do so is an abuse of discretion; 2) people have a privacy interest in their electronically stored information and their telephone records; and 3) a nonparty’s status as such must be considered. Here, the trial court failed to apply the balancing test and was ordered to do so.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SA287.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=8907&courtid=2

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Filed under Evidence, Interlocutory Review