“Reading the two sets of briefs, it’s like two ships passing in the night” – Coats, J. (oral argument). This case raised one of two questions about Amendment 23’s (Am 23) school funding mandate: what does “base” mean or, was it rendered meaningless? A “negative factor” was created by the legislature for the purpose of reducing the State’s school funding obligations. Am 23 mandates annual increases to “statewide base per pupil funding.” The Negative Factor reduces nearly all other parts of the funding formula without reducing “base” funding. The majority held that so long as there is no reduction in “base funding,” the “algebraic significance [of the Negative Factor] within the funding formula is immaterial [to Am 23’s mandate].” The dissent noted that the Negative Factor eliminates the school funding increases intended by Am 23, creating fact questions that preclude dismissal.
Category Archives: Interlocutory Review
Lindi Dwyer and Paul Dwyer, as individuals and parents of Jayda Dwyer, Joslyn Dwyer, Janesha Dwyer, and Jentri Dwyer, et. al. v. The State of Colorado; Robert Hammond as Commissioner of Education; and John Hickenlooper as Governor of the State of Colorado, 2015CO58 (Sept. 21, 2015)
“Know the Gaps” – Farmer’s Insurance ad. The Colorado Supreme Court granted review of, and answered in the negative the following certified question from the Tenth Circuit Court of Appeals: “whether the notice-prejudice rule applies to the date-certain notice requirement of claims-made policies.” The notice-prejudice rule (set forth in Friedland v Travelers) allows insureds to avoid the consequence of late notice of a claim under a “prompt-notice” provision if the insurer is not prejudiced. A “claims-made” policy, different from an “occurrence” policy, typically requires that notice of an occurrence be given by a date-certain as a condition precedent to coverage. The date-certain provision is, therefore, a material condition of coverage. Applying the notice-prejudice rule would alter the parties’ agreed allocation of risk, something the Court declined to do.
To read the 10th Circuit’s order following this opinion, click HERE.
“In choosing Boulder, the plaintiffs may well have engaged in ‘forum shopping’ … But Rule 98 (c)(1) does not restrict the plaintiff’s choice of venue when the defendant is a nonresident…” Opinion. Relying on its opinion in Sampson v. District Court, 590 P2d 958 (1979), and approving an exemplar affidavit in Dep’t Highways v District Court, 635 P2d 889 (1981), the Supreme Court reversed three trial court orders transferring venue. It held that Boulder was a proper venue and that Defendant Farmers Insurance did not provide sufficient evidentiary support for its request to change venue. Defendant failed to 1) focus on the convenience of non-moving party witnesses and 2) submitted inadequate affidavits that did not contain in sufficient detail: a) witness identity, b) the nature, materiality and admissibility of testimony, and c) how the change would affect the witnesses.
“[D]elay in service… cannot be found reasonable simply because the plaintiff made diligent efforts to locate the defendant.” Opinion. Malm filed her personal injury complaint in 2005, one month before the 3-year time limitation ended. In 2013, Malm found Villegas in Germany, and the District Court reopened the case noting the lack of a rule stating a reasonable time for service in a foreign country. Villegas opposed, arguing that the failure to serve her sooner was an unreasonable delay amounting to a failure to prosecute. The Court held that a delay between filing and service of a complaint beyond the statute of limitations is reasonable only if it is the product of either wrongful conduct by the defendant or some formal impediment to service. Without any facts that Villegas deliberately avoided service, the District Court should have dismissed the case for failure to prosecute.
DISCLAIMER: The Author was an attorney on the brief for Petitioner Malm. Andy Helm assisted in the writing of this post.
In Re: Colorado Medical Board v. Office of Administrative Courts; Matthew E. Norwood, ALJ, and Polly Train, MD, 2014CO51 (June 23, 2014)
Jeopardy – Answer: a “subpoena” is different from “discovery,” but an “administrative hearing or proceeding” is the same as a “civil suit.” Question – why does CRS 12-36.5-104, establishing the peer review privilege, extend to a subpoena issued in an administrative proceeding? Reviewing this question pursuant to CAR 21, the Court held that the privilege protects all the records of a professional review committee from all subpoenas and all discovery, and renders such records inadmissible in civil suits including administrative proceedings of an adjudicatory nature. In this case, a doctor was denied a Colorado medical license and appealed the denial. She sought certain Letters of Concern issued by the Medical Board. An ALJ issued a subpoena for the letters. The Board objected and then appealed via CRCP 106 and CRS 24-4-106. Because the records were protected, the Board won.
In Re: Michael Young and Amy Larson et. al. v. Jefferson County Sherriff and Deputy John E. Hodges and Cristian Robinson, 2014CO1 (January 13, 2014)
“Click it or ticket” does not apply to law enforcement when a deputy is transporting a juvenile and does not secure the juvenile’s seat belt. This case’s first interlocutory appeal involved the County’s unsuccessful claim for immunity under the CGIA. On remand, the County then sought immunity under CRS 19-2-508, which provides for immunity for law enforcement officers who, in good faith, transport a juvenile under the direction of the court. The statute creates a presumption of good faith. After a hearing, the trial court determined that by failing to secure the juvenile’s seat belt, the officers acted in bad faith. On review, pursuant to CAR 21, the Court disagreed and held that allegations of negligence alone are not sufficient to overcome the presumption of good faith, and thus the granting of immunity. The case was sent back to the trial court, again.
Mid Valley Real Estate Solutions V, LLC, v. Hepworth-Pawlak Geotechnical, Inc.; Steve Pawlak; Daniel Hardin; and S K Peightal Engineers, Ltd., 2013COA119 (August 1, 2013)
Soils swelled, cracking substructure; single-asset subsidiary sues. Residential homebuilders owe an independent duty to homeowners to build a home with reasonable care. In this CAR 4.2 interlocutory appeal, Defendant homebuilders argued that the economic loss rule should prevent a corporate subsidiary of a bank from bringing tort claims that a natural-person homeowner could bring. Rejecting each of Defendants’ arguments, the court of appeals held that the independent duty owed by homebuilders announced in Cosmopolitan Homes, Inc. v. Weller, 663 P.2d 1041(Colo. 1983) also prevents the economic loss rule from barring a corporate-plaintiff’s construction defect claims. A homebuilder’s duty of care is owed to any subsequent owner of a house because the duty arises from the residential nature of the project, not the nature of the homeowner (corporate or otherwise).
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.
DCP Midstream, LP, v. Anadarko Petroleum Corp.; Kerr-McGee Oil & Gas Onshore LP; and Kerr-McGee Gathering LLC, 2013 CO 36 (June 24, 2013)
Do courts manage cases “to secure the just, speedy, and inexpensive determination of every action?” (CRCP 1). They should. Here, Plaintiff sought information about thousands of gas wells and contracts, though it sued on far fewer. The trial court permitted broad discovery. In a wide-reaching opinion, the Court reversed and ordered all trial courts to actively manage discovery when objections to scope arise under CRCP 26(b). Those objections should be explicitly addressed in the context of the cost-benefit, proportionality, and other “good cause” factors in CRC 26(b)(2)(F). The Court would not distinguish between discovery of “claims and defenses” and “subject matter,” though the concurrence would have. The Court also reiterated that the attorney-client privilege applies to a Title Opinion if it is a confidential communication made in the course of obtaining advice.