Monthly Archives: July 2013

Rodney Reid v. Daniel Berkowitz, d/b/a Shimon Builders, 2013COA110 (July 18,, 2013)

“Flying is learning how to throw yourself at the ground and miss.” – HHGTTG. Here, Plaintiff fell three stories in a dimly lit house under construction when a handrail gave way. He sued Defendant/landowner and two builders who negligently put up the handrail. The builders defaulted. The jury found for Plaintiff. Defendant appealed. The trial court did not give an instruction to apportion fault between Defendant and the builders; the court of appeals held it should have. But, since landowners have a nondelegable duty to keep property safe, and thus, Defendant was vicariously liable for all of the builders’ liability, the error was harmless. The evidence did support Plaintiff’s contributory negligence, so it was an error not to offer that instruction. Finally, Plaintiff was a licensee, not a trespasser. The case was remanded for a determination of plaintiff’s fault only.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA0769-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9034&courtid=1

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Filed under Personal Injury, Torts

Just In Case Business Lighthouse, LLC, v. Patrick Murray, 2013COA112 (July 18, 2013)

“Integrity has no need of rules.” Albert Camus. There is no question that paying a testifying witness a contingent fee based on the outcome of the case is prohibited. But such evidence is not excluded per se. The court of appeals came to that conclusion because trial courts have discretion to admit testimony generally. Next, the court of appeals determined that the paid witness was properly permitted to summarize evidence already admitted into the record without violating CRE 602. Similarly, the witness’s summary exhibits were properly admitted, again because they were based on admitted evidence. Moving on, it held that a nonparty at fault could not be designated based on vicarious liability alone. The court then upheld the trial court’s decisions 1) to deny a directed verdict on a fraud claim and the economic loss rule and, 2) found a CRE 701 objection was not preserved for appeal.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1261-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9033&courtid=1

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William G. Strudley and Beth E. Strudley v. Antero Resources Corporation, Antero Resources Piceance Corporation, Calfrac Well Services Corporation, and Frontier Drilling, LLC, 2013 COA 106 (July 3, 2013)

“Coal seam gas stinks.” – Anti-fracking poster. In this case, home-owner Plaintiffs sued four oil and gas companies claiming pollutants from drilling activities at three well sites contaminated their air, water, and land around their home. The trial court issued a modified case management order that required Plaintiffs to make a prima facie case in support of their toxic tort claims before discovery began — commonly called “Lone Pine” orders. Plaintiffs produced evidence of well water contamination and expert reports, but not evidence that the drilling caused their injuries. The trial court dismissed with prejudice. The court of appeals reversed because: 1) trial courts lack discretion under CRCP 16(c) to issue such orders; 2) the case was not complex or extraordinary enough to depart from normal procedure; and 3) existing procedures protect against meritless claims.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1251-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9023&courtid=1

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Filed under Evidence, Proceedure, Torts

In re the Parental Responsibilities of I.M., and Concerning R.A.M. and M.A.R., 2013COA107 (July 3, 2013)

“Paternity is a legal fiction.” James Joyce. McKenzie sought to have Russo declared the legal father of her son, I.M. Russo countered, arguing both that the statute of limitations barred the suit, and that McKenzie could not sue on I.M.’s behalf, as he was over 18. McKenzie claimed she should be allowed to bring the suit “at any time” under CRS 19-4-107 because Russo held I.M. out as his son.  She then sought to join I.M. as an indispensable party. The trial court granted judgment on the pleadings, holding that the suit was barred by statute of limitations, and that I.M. was not indispensable because, under CRS 19-4-108, he could bring his own suit before turning 21. The Court of Appeals agreed with the trial court’s legal conclusions as well as holding that CRS 19-4-107 only allows suits “at any time” when the parties were married or thought they were married.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1412-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9024&courtid=1

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Town of Castle Rock and CIRSA v. Industrial Claim Appeals Office and Mike Zukowski, 2013COA109 (July 3, 2013)

“Cancer is a number of diseases subsumed within one diagnostic label.” Mary Burton Maggie Watson. Firefighter sought workers compensation benefits from Town. Per CRS 8-41-209, certain cancers are presumed covered, unless the employer can show by a preponderance of medical evidence the disease did not occur on the job. Both parties stipulated the statute’s presumption of coverage applied, and the only issue on appeal was whether the Town overcame that presumption. An administrative judge held, and the Industrial Claims Appeals Office affirmed, that a defendant must establish a specific non-work-related cause of the cancer to overcome the presumption. The court of appeals remanded, holding that requiring an employer to establish a specific cause may be an insurmountable barrier, and the correct standard to overcome the presumption was a preponderance of the evidence.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA2190-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9018&courtid=1

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James C. Smith and Dona Laurita, v. Alan W. Kinningham and Accelerated Network Solutions, Inc., 2013COA,103 (July 3, 2013)

After all these years, rear-end car accidents still produce new law. Here, the court of appeals held that evidence of Medicaid benefits were properly excluded by the collateral source rule. Under CRS 10-1-135, any collateral source payment is excluded from evidence. Medicaid payments are a collateral source, and the statute abrogated the common law “gratuitous government benefits exception.”  Plaintiffs’ claims against ANS, the company insuring the car, were dismissed; thus, ANS as the prevailing party was entitled to costs but not fees because the claims were not frivolous. The remaining issues got short shrift: 1) the sudden emergency doctrine has been abolished; 2) a party who requests a hearing on costs is entitled to one; 3) Plaintiffs were awarded appellate fees because Defendants frivolously argued for a new trial under CRCP 59 based on a requirement that did not exist.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA0156%20&%2012CA0157-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9020&courtid=1

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United States Taekwondo Committee and U.S. Kukkiwon, Inc., v. Kukkiwon, a Republic of Korea special corporation, 2013COA105 (July 3, 2013)

The most difficult part of [taekwondo] is … taking the first step across the threshold of the dojang door.” ― Doug Cook. This case is about the threshold issue of appellate court jurisdiction over an interlocutory appeal from a denial of a motion to dismiss claiming Foreign Sovereign Immunities Act (FSIA) immunity and asserting the Act of State Doctrine. Denial of FISA immunity is immediately appealable in federal court. CRS 13-4-102 only permits appeals from final judgments. The court of appeals held it had jurisdiction over the FISA order and affirmed, citing federal law, principles of neutrality between state and federal courts and sound appellate practice. But, it lacked jurisdiction over the Act of State Doctrine appeal because the Doctrine is a form of preclusion based on facts. Finally, it held that Colorado courts of appeals do not have pendent appellate jurisdiction.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA0816-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9022&courtid=1

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Filed under Appellate Review Challenged, Contracts, Government, Interlocutory Review

In re the Parental Responsibilities of L.K.Y. and J.R.Y., and Concerning Karen Elizabeth Peabody, and Angela Francis Young, n/k/a Evan Young, 2013COA108 (July 3, 2013)

“I’m for gay marriage, because I’m for gay divorce.”- Melissa Etheridge. Following the dissolution of a California domestic partnership, the same-sex parents of twins, who had moved to Colorado, sought a declaration of custodial rights and child support. The parent claiming support (Young) was in the military and received a stipend for off-base living. The magistrate did not deduct the stipend from her gross salary calculations because it qualifies as money that reduces Young’s personal living expense. If deducted, Peabody’s support obligation would be reduced by reducing the needs of the children. Peabody appealed. The court of appeals agreed, holding it was a proper under CRS 14-10-115 to not deduct the stipend because the stipend was not a resource of the children. Therefore, the total award of child support was higher than it would have been without the stipend.

http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2013/12CA1674-PD.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9025&courtid=1

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Rodney Asmussen and Linda Asmussen, For Themselves and As Representatives of a Class of Similarly Situated Persons v. United States, 2013CO54 (July 1, 2013)

“Utilizing the abandoned rail bed of the Great Western Railroad [GWR], the trail will preserve this historic right-of-way through the “rail banking” provisions of the federal Rails to Trails legislation.” – Great Western Trail Authority. This case questions whether a landowner whose property abuts the GWR is presumed to own property to the centerline of the rail bed. If so, creating the right-of-way could be a 5th Amendment taking. The Court held that the centerline presumption applies to railroad rights-of-way in Colorado and that it is a common law rule of conveyance, not a rule of evidence. But, the presumption applies only if a property owner can trace title to a grantor who owned the land underlying the right-of-way. The burden of proving title to land is on the person alleging ownership. Thus, owning adjacent land is not sufficient alone to apply to the centerline presumption.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2012/12SA96.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9013&courtid=2

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Lynda S. Gibbons, Brent Wilson, and Gibbons-White, Inc., v. Gregory T. Ludlow, S. Reid Ludlow, and Jean E. Cowles, 2013CO49 (July 1, 2013)

“He who lives by the crystal ball soon learns to eat ground glass.” – Edgar R. Fiedler. In this case, the Court held that recovering damages for the bad advice of a transactional real estate broker requires proof of what would have happened but-for the bad advice. Analogizing to legal malpractice claims, the Court noted that a plaintiff must show either that he: 1) would have been able to obtain a “better deal” or 2) would have been better off with “no deal.” Both require proof that the professional’s negligent acts or omissions caused the client damages. Here, Plaintiff claimed lost profits as damages, requiring proof of either the amount of the profits that would have been earned or the fact that profits would have been earned. Plaintiff had an appraisal. The appraisal wasn’t proof a future sale of the property would have been better or different than the actual sale. Dismissal affirmed.

http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2011/11SC899.pdf

http://www.cobar.org/opinions/opinion.cfm?opinionid=9011&courtid=2

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